A Legacy of War
As a legacy of the Vietnam War, Cambodians became refugees in Thai camps or fled across the border to Vietnam. Tens of thousands of others left Cambodia to places like the United States, France, Canada, New Zealand and Australia.
Here in the United States, a majority of Cambodians ended up in California and of those numbers who did not end up in Stockton, Los Angeles, Long Beach or San Diego, many came to the San Francisco Bay Area to live in places like Oakland and San Jose.
After Cambodians came to the Bay Area, the next generation who would grow up in these cities were in areas such as the Tenderloin District of San Francisco, East and West Oakland, East Side San Jose, etc. The war on drugs during the 1980’s gave way for crime and gang activity to plague the neighborhoods that Cambodians lived in and as a result, many of the 1.5 generation Khmer Americans were drawn into this activity and oftentimes, violence. With little to no assistance or programming, many Cambodian youth were arrested for small crimes – which led to a loophole that USCIS decided to use as a way to deport Cambodians back to the U.S. In 2002, the United States and Cambodia co-signed the Repatriation Agreement, kickstarting a wave of deportations in Cambodian immigrant communities.
The Legality of ICE Raids
From 2016-2020, the US under the Trump administration saw a sharp increase in detainments by ICE as well as deportations. The Cambodian community, among others, has suffered and continues to have to be on high alert. Deportations to Cambodia rose 279% from 2017 to 2018 with the removal of 110 people. This is largely due to the fact that Cambodia agreed to start accepting returnees in February 2018, under the pressure of visa sanctions from the United States. These visa sanctions came after Cambodia ended a 15 year agreement allowing the repatriation of deportees in April 2017.
Most of those deported have committed a crime in their time in the United States. At this time there are 1,855 Cambodians living in the United States who are subject to detainment or deportation; according to ICE estimates, 1,362 of those have a criminal record. There have been major deportations of Cambodians; one plane left the states with 36 deported Cambodians on it. Moreover, ICE has told Cambodia to expect 200 deportees a year onward; this can be compared to the period from 2002 to 2017, in which 500 Cambodians were deported. Nevertheless, the justification for what counts as a crime regardless of the timeframe it occured in continues to be a discussion point for many activists fighting against the ICE deportations of Cambodians.
Returning to an Unknown Country
Often, those who are repatriated are unable to speak Khmer and no longer have familial or cultural ties to Cambodia. Usually, they are leaving all of their family and greeted by none. A vast number of Cambodians who are being deported were born in refugee camps in Thailand following the genocide, and have not actually been in Cambodia, despite that being the nation that they are citizens of. Part of the issue is that permanent residents/green card holders in the United States do not seek citizenship, despite the fact that they have a criminal conviction and can technically be deported at any time. Furthermore, many of these detainments come from long standing criminal convictions, and their criminal records may come from their environments: “A lot of these people have records because they grew up in poverty-stricken, high-crime neighborhoods. Now, they have families and full-time jobs that they stand to lose,” says Susana Sngiem.
These deportations have garnered heavy amounts of criticism. In January of 2019, LA Judge Cormac. J Carney issued a temporary injunction prohibiting ICE raids and mandating a 14-day notice prior to detain or deporting a Cambodian immigrant. The restraining order described the removal without due process as unconstitutional, and prohibited the government from detaining people without a 14-day notice that includes the charging documents in immigration court, the removal order, and the criminal conviction records. The San Francisco and LA chapters of Asian Americans Advancing Justice sued the federal government over the detainment of 100+ Cambodians in fall 2017, citing illegality and ordered their release. Immigration authorities stated that their actions were justified in both federal and international law. The AAAJ lawsuit argues that as many of the detainees were born in refugee camps, they are effectively American: their ethnicity/nationality is Cambodian but they have little experience of the Khmer language/Cambodian culture. This is partially where Cambodia’s reluctance to issue travel documents come from: returnees struggle to function in a foreign country. Cambodia in fact has asked the US to increase aid for the returnees if they agree to accept them. The detained immigrants were released after six months if immigration officials could not prove that they were dangerous.
Constitutional and Legal Basis / Issues
The Fourth Amendment prohibits warrantless intrusions into private homes for both citizens and non-citizens. Without this, there must be voluntary and knowing consent. The nature of ICE raids does not constitute consent. ICE has ignored this repeatedly; one officer even said, as he was entering a home, “We don’t need a warrant, we’re ICE. The warrant is coming out of my balls.” The US Immigration and Nationality Act lists “violation of law” as a deportable offense. Also a deportable offense: drug abuse or addiction, and the possession of more than 30 grams of marijuana.
Chhay Kim reported to ICE consistently for 18 years; was deported when his wife was months away from giving birth to their fifth child.
Nak Kim Chhoeun was detained after making an immigration check in LA in 2017. Came to the US as a 6 yr old refugee from Thailand and was convicted of an aggravated felony in 1999 and everything he did thereon was entirely legal—yet he was still detained by ICE. Chhoeun worked as an AT&T technician for 14 years. He was deported at 42. “He never got married and never had children, Tuot said, knowing that his time in America was limited.”
Chhoeun vs. Marin
In 2018, Nak Kim Chhoeun and Mony Neth filed a habeas petition on behalf of themselves and individuals in similar situations. The two men are Cambodian nationals who have lived in the United States for the vast majority of their lives and whose families and communities exist in the United States. They both committed felonies early in their lives, and as such have standing deportation orders. However, because prior to 2002, Cambodia did not accept deportees from the United States, and even after 2002 and up to 2017, only in small numbers, these men were not deported. Immigrations and Customs Enforcement (ICE) never received travel documents from Cambodia, so they were released. Later, in 2017, both men were re-detained without warning or time to put their affairs in order or contest their removal orders. They were told they would be detained until they were deported by December of that year. A habeas petition is a civil action made against a state agent by a detained or imprisoned person which contests the legality of their imprisonment or detention. They filed the petition on the basis that their constitutional right to due process was violated in the process of detaining them and preparing them for deportation. This is a class action suit, which is to say that it is being petitioned on the behalf of the petitioners as well as a class of people in the same situation as them. There are currently about 1900 Cambodians in this situation. The judge for the court was Cormac J. Carney.
Nak Kim Chhoeun
Chhoeun was born in Cambodia in 1975 during the Khmer Rouge regime. His family was admitted into the United States as refugees of that regime in 1981. All of his family members are currently United States citizens. In 1999, Chhoeun was convicted for crimes involving firearms and simple assault; subsequently, in 2002, an immigration judge issued his removal orders. He was detained from January to November of 2003, waiting for Cambodia to issue travel documents. They never did and he was released on November 25, 2003. He complied with the conditions of his release for fourteen years, never having another conviction or arrest. He has been employed in those years, most recently for AT&T. His siblings described him as “a hard worker always striving to succeed in life,” and a “role model”. Friends described him as “a man of great integrity,” and “the kind of person who would give the shirt off his back to anyone who was in need.”. ICE sent Chhoeun a letter requesting that he report to the local ICE office. The letter did not explain why, or indicate that his release was being revoked. Through his detainment, Chhoeun described depression and feelings of hopelessness. He received no updates of whether or not Cambodia issued travel documents or whether he would be deported.
Neth was born in Cambodia in 1975 and entered the States ten years later with his parents, also fleeing the Khmer Rouge regime. He currently lives with his wife, parents, and teenage daughter, all of whom have US citizenship. In 1995, he was convicted of receipt of stolen property as well as unlawful weapon possession. ICE detained Neth in 1997 for removal proceedings. They released him shortly after, when they determined that he was not a flight risk. At this time, Cambodia was not accepting any deportees from the United States. In the last 20 years, Neth has met the requirements of his release orders and has not had any criminal convictions or arrests. He is employed, has a family, and through his church gives back to the community by serving meals to the homeless. In 2017, he was granted a Certificate of Rehabilitation for his convictions. He was determined to be fit to “exercise all the civil and political rights of citizenship.” In October 2017, ICE detained Neth while he was driving to work. He was not given notice nor explanation; his family was only informed when ICE returned their car to the home. In December 2017, the Governor of California issued Neth a full and unconditional pardon. He later filed a motion for a stay of removal, which he was granted.
The petitioners challenge that the actions of ICE in re-detaining these individuals violated due process; they seek release. They made the five claims in their habeas petition:
“(1) Unlawful revocation of release, (2) violation of procedures for revocation of release, (3) unlawful detention where removal is not reasonably foreseeable, (4) unlawful detention without individualized determinations of danger and flight risk, and (5) unlawful removal without due process guaranteed by the Constitution.”
The government said that Claims One, Two, and Five were not legitimate because they do not fall under the jurisdiction of the court under the REAL ID Act of 2005. This Act served to strip district courts of the jurisdiction to review certain immigration decisions. They invoked the following text of the Act:
Section 1252(a)(5): “a petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an order of removal.”
Section 1252(b)(9) : “Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.”
Section 1252(g):”Except as provided in this section . . . no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.”
The government argued that these excerpts read in conjunction with one another prohibit district courts from considering Chhoeun/Neth’s petition and similar ones. The judge ruled, however, that the REAL ID Act does not have that broad a scope and that to deny the petitioners their requests on the basis of these excerpts from the Act would not be in keeping with the spirit of this part of the Act, which has a specific purpose: it is “directed against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion.” (Am.-Arab Anti-Discrimination Comm., 525 U.S. at 485 n.9.) In other words, the Act aims to restrict judicial review of the merits or validity of a removal order. The petitioners argue that because they are not contesting the merits or validity of the removal orders themselves, but rather the manner in which they were carried out, their claim can be decided in district courts. Chhoeun was granted relief on Claims Three and Four; he was ordered to be released from custody and placed on the same legal terms for his release that he complied with prior to 2017.