Cambodian Nationality Law and the Repatriation of Convicted Aliens

by Jana M. Seng
Juris Doctor
University of Washington School of Law

Currently the U. S. Immigration and Naturalization Service ("INS") is indefinitely detaining thousands of aliens who have already completed their criminal sentences. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") allows the INS to detain these convicted aliens while initiating a removal proceeding for deportation to their native country. Absent from the IIRIRA is a provision addressing whether the INS may indefinitely detain convicted aliens who cannot be deported because the United States has no repatriation agreement with the alien's native country. Justification for the indefinite detention rests on the unfounded assumption that the United States will secure a repatriation agreement in the near future. However, an analysis of Cambodia's arbitrary practice of determining citizenship and the lack of uniformity in the proof of nationality under international law will reveal the complexity involved in negotiating an immediate agreement. For this reason, the U.S. Supreme Court should preclude the INS' practice of indefinite detention and require an immediate release of indefinite detainees after they have served their sentence where the native country has no repatriation agreement with the United States and has not shown a willingness to accept the detainees' return.


In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"),1 putting into effect strict deportation provisions against aliens who have been convicted of crimes that range from aggravated felonies to misdemeanors.2 The IIRIRA instructs the Immigration and Naturalization Service ("INS") to initiate removal proceedings against convicted aliens and to deport them to their country of nationality after they have completed their sentences in the United States.3 The Attorney General has ninety days after the removal order becomes administratively final to remove the alien.4 However, some convicted aliens cannot be removed within the ninety-day statutory period and have remained in INS detention indefinitely because their countries of nationality lack a repatriation agreement with the United States and refuse to accept their return.5
      The IIRIRA's deportation provision has grave consequences for many aliens. For example, the INS may initiate deportation proceedings against convicted aliens without regard to the alien's legal resident status6 or long-term residence in the United States.7 As a result, many aliens have been forced to return to countries to which they have few or no ties.8 Frequently, the deportation of these aliens results in the forced separation of families9 and may undermine the financial stability of the family unit.10
      In addition, the IIRIRA deportation provision is exhausting administrative resources.11 Aliens waiting for their deportation occupy jails and detention centers; currently those who cannot be deported will remain there for an indefinite period.12 Estimates of the number of indefinite detainees held throughout the United States as of February 2001 have ranged from 3,000 to 4,500.13 Furthermore, deportation proceedings have recently increased. In 1999, the INS deported 62,359 immigrants for criminal offenses, an increase of seventy-two percent from 1996, when IIRIRA was enacted. Consequently, indefinite detainees have flooded the INS offices and courts with habeas corpus petitions challenging their detention.14
      Using Cambodia as a model, this Comment argues that the INS should release convicted aliens who have completed their sentences and are being detained indefinitely because the United States does not have a repatriation agreement with the detainee's country of nationality. Part II examines the indefinite detention loophole of the IIRIRA and highlights the case of Kim Ho Ma, a Cambodian national who successfully sought judicial release from indefinite detention. Part III describes how IIRIRA conforms with international standards for repatriation. Part IV outlines Cambodia's nationality and citizenship laws. Part V argues that Cambodia's exclusive nationality policies will hinder negotiation of a repatriation agreement with the United States. Part VI recommends that the INS release indefinite detainees who have completed their sentences and cannot be repatriated to their country of nationality.


The IIRIRA is silent on the length of time the INS may hold a convicted alien and the INS therefore maintains that it has the authority to detain such aliens for an unlimited amount of time.15 This has resulted in the indefinite detention of aliens who have completed their sentences.16 Contrary to the INS position, the Ninth Circuit held in Ma v. Reno17 that indefinite detention is unlawful and ordered the release of indefinite detainees held in INS custody.18 Even so, the INS continues to hold convicted aliens that cannot be repatriated19 while the U.S. Supreme Court reviews the issue.20

A. The IIRIRA Allows the INS to Detain Aliens Indefinitely

The IIRIRA specifically authorizes the U.S. Attorney General on behalf of the INS to detain21 and remove an alien from the United States who has been found guilty of the crimes enumerated in 8 U.S.C. § 1227(a)(2).22 The deportation consequence of criminal convictions apply to both illegal aliens and lawful permanent residents, with few distinctions between the two status.23 After a removal order becomes administratively final, the Attorney General "shall" remove the alien from the United States "within a period of 90 days" (referred to as the "removal period").24 Furthermore, an alien may be detained beyond the removal period where the alien is deemed "a risk to the community or unlikely to comply with the order of removal[.]"25 Thus, aliens may be detained beyond the ninety days after their final administrative removal order while waiting for their deportation.26
      However, the statute does not address how long the Attorney General may detain an alien when the deportation order cannot be effectuated.27 The INS argues that its authority to "detain [aliens] beyond the removal period" means that it can detain convicted aliens indefinitely.28 Thus, under the interpretation of the INS, it is foreseeable that a convicted alien who has committed a misdemeanor that renders him deportable can remain in INS custody for life, if the United States is unable to negotiate a repatriation agreement with the receiving country.29 The INS' justification for the indefinite detention rests on the assumption that a repatriation agreement can be secured in the near future because international law dictates that a country must readmit its nationals.30 The countries where most of the indefinite detainees are from and where the United States currently has no repatriation agreement with are Cambodia, Cuba, Laos, or Vietnam.31
      Recently the United States established a delegation to negotiate a repatriation agreement with Cambodia after realizing the increased number of convicted Cambodian aliens would result in an undesirable population of indefinite detainees.32 Nevertheless, Cambodian officials have opposed a repatriation agreement. Cambodia maintains that the detainees either do not have requisite documents, or that the documents are insufficient to prove their nationality.33 In addition, many detainees have been in the United States most of their lives, leading Cambodian officials to believe that the detainees should serve their punishment in the United States and thereafter be reintegrated into American society.34 Moreover, Cambodia does not have the resources to rehabilitate the detainees.35 Thus, the possibility that the detainees will commit crimes in Cambodia are great since many of the detainees are believed to lack the family support, language, and relevant employment skills to become productive citizens in Cambodia.36

B. Ma v. Reno

Until Ma, most appellate courts upheld the power of the INS to indefinitely detain criminal aliens.37 In Ma, the Ninth Circuit affirmed the habeas corpus petition of a Cambodian native who had completed his prison sentence but was being held indefinitely by the INS after Cambodia refused repatriation.38 Ma's personal background is similar to that of other convicted Cambodian nationals who are currently in detention or have been in detention and cannot be repatriated.39 Most often they are males in their late teens to early twenties when convicted; they have sought asylum in the United States at an early age and have adjusted their refugee status to that of legal permanent resident; most have not returned to Cambodia since fleeing the country; and most are not fluent in the their home language.40 Such was the case of Kim Ho Ma.
      When he was two, Kim Ho Ma fled Cambodia with his family in fear of persecution by the communist Khmer Rouge.41 They sought asylum in Thailand's refugee camps, living there for four years before lawfully entering the United States in 1985.42 Soon after, Ma became a legal permanent resident. He lives in Seattle, Washington and has not returned to Cambodia since his escape at the age of two.43
      When Ma was seventeen, he was convicted of manslaughter for his involvement in a gang-related shooting.44 As this was Ma's only criminal conviction and because of his good behavior, he served two years in prison.45 However, after Ma completed his sentence, the INS denied his release. The INS further found him to be a "danger to the community"46 and detained him for deportation to Cambodia.47 Manslaughter is a deportable crime under the IIRIRA.48 Ma's order of removal became final on October 26, 1998,49 but the INS could not remove him within the ninety-day removal period because the United States does not have a repatriation agreement with Cambodia. Ma's family and friends were also unsuccessful in persuading the Cambodian government to accept Ma into the country.50 By the time he filed his habeas corpus petition, Ma had been in INS custody for nearly two years after completing his sentence.51 Ma's petition was one of five cases consolidated to consider the IIRIRA indefinite detention issue.52 Like Kim Ho Ma, many other indefinite detainees are from Southeast Asian countries that do not have repatriation agreements with the United States.53 In Ma, the Ninth Circuit interpreted the IIRIRA deportation provision as granting the INS authority to detain aliens only for a reasonable amount of time beyond the statutory removal period.54
      In light of the Ma decision, the INS voluntarily released 142 detainees, and another fifty-two have been released by court order.55 However, Ma conflicts with decisions from the Fifth56 and Tenth Circuits.57 Thus, the INS continues to indefinitely detain criminal aliens within those jurisdictions.58 The Supreme Court has granted certiorari to hear Reno v. Ma and is likely to resolve the circuit conflict in the near future.


Under international law, every state has a duty to admit its nationals.59 However, each state promulgates its own nationality laws and has discretion to determine what evidence is sufficient proof of nationality. A consequence of the lack of uniform nationality laws is that certain individuals can become "stateless" and cannot be repatriated. Thus, to the extent that the IIRIRA relies on the uniformity of nationality laws to effectuate its deportation provision, its indefinite detention loophole is exacerbated.

A. The Duty of Sovereign States to Grant Admission to Their Nationals

The principle that every state has a duty to admit its own nationals is widely accepted as a customary international rule of law.60 International law regulates the movement of persons across state borders, and thus imposes certain duties, such as the duty to admit nationals, on the states in order that the movement can be effective. However, it is unclear to whom the duty to admit nationals is owed. One argument is that the duty is owed between states and that the duty is a corollary of the right of states to expel non-nationals from its territory.61 However the right to expulsion is subject to limitations. For example, its exercise is confined only to aliens, only in the event of the lawful exercise of states' rights, and only in those cases in which no foreign state is prepared to permit the expelled person to settle in its territory.62 Furthermore, the extent to which a state is free to expel aliens who have effectively acquired nationality by virtue of long-term residence is a matter for debate.63
      The duty of admission has also been viewed as a duty owed to the national seeking reentry into the state.64 In this context, the duty is corollary to the individual's right to return to "one's own country" as recognized in article 13(2) of the Universal Declaration of Human Rights ("Universal Declaration"): "[e]veryone has the right to leave any country, including his own, and to return to his country." 65 Although the Universal Declaration is not a legally enforceable instrument,66 the international community's repeated reliance on it as a normative instrument has given rise to a universally binding customary law.67 Furthermore, modern human rights treaties, such as the International Covenant on Civil and Political Rights ("ICCPR")68 and the International Convention on the Elimination of All Forms of Racial Discrimination ("Convention on Discrimination")69 have developed to give more detailed legal effect to the Universal Declaration.70 Cambodia is a signatory to both instruments.71 The international community narrowly construes "one's own country" as the right of nationals or citizens to return to a country in which they live or have lived.72 This right is enforceable not merely by the individual but by interstate action, such as by court order or by legislation.73
      In summary, international laws such as the ICCPR and the Convention on Discrimination delineate the duty to admit nationals. Cambodia, as a signatory to both conventions and a member of the international community, therefore has a duty to admit its nationals.

B. Non-Uniform Nationality Laws Exacerbate the IIRIRA Indefinite Detention Loophole by Creating "Stateless" Individuals

Each state decides for itself what constitutes nationality and how nationality can be proven. As a result, some individuals may not be able to demonstrate nationality in any country, thereby becoming "stateless." This exacerbates the IIRIRA indefinite detention loophole, which rests on the premise that every alien is eventually deportable.

1. International Standards for Nationality Laws

To effectuate the deportation provision of the IIRIRA, the receiving state must (1) recognize the nationality of the individual seeking admission to its territory and (2) recognize its duty to admit those nationals. Thus, the United States' power to expel aliens under the IIRIRA is correlative to and is dependent on the receiving state's willingness to grant admission to nationals.
      A state's recognition of its nationals and its duty to admit nationals is a matter associated with the sovereignty of the state and thus left within national jurisdiction.74 Article 1 of the 1930 Convention on Certain Questions Relating to the Conflict of Nationality Laws ("Convention on Conflict") provides that "[i]t is for each State to determine under its own law who are its nationals" and article 2 further provides that "any questions as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State."75 Thus international law leaves to each sovereign state the inherent right to promulgate laws and regulations as it sees fit. However, limitations to these rights are recognized in cases where their exercise would be inconsistent with international conventions, international custom, and principles of law generally recognized with regard to nationality.76
      The most pertinent international instruments relating to the law of nationality are the conventions relating to statelessness and discrimination. The Convention Relating to the Status of Stateless Persons ("Convention on Statelessness") provides that an individual may not be deprived of his nationality so as to render him stateless. A stateless person is one "who is not considered a national by any state under the operation of its law."77 Although Cambodia is not a signatory to the Convention on Statelessness, its obligation under the customary law of the Universal Declaration of Human Rights dictates a similar goal as the Convention on Statelessness. Article 15 of the Universal Declaration states that "[e]veryone has a right to a nationality," and "[n]o one shall be arbitrarily deprived of his nationality[.]"78 The Convention on Statelessness has been interpreted to prevent the same undesirable situation of statelessness.79 The Convention on Discrimination is also relevant to nationality laws.80 Specifically, Article 5 emphasizes the need to avoid discrimination in the treatment of state nationals who wish to cross its borders.81 Cambodia ratified the Convention on Discrimination in 1994.82

2. International Standards for Proof of Nationality

International law recognizes that proof of nationality is within the domestic jurisdiction of each sovereign state.83 For example, Article 2 of the Convention on Conflict84 establishes that "[a]ny question as to whether a person possesses the nationality of a particular state shall be determined in accordance with the law of that State."85 Typically, an individual who claims that his nationality entitles him to enter a state commonly bears the burden of proving his national status.86
      What is considered acceptable evidence varies according to the jurisdiction. A number of states follow a combination of jus soli and jus sanguinis methods in determining nationality.87 Evidence of birth in the territory is sufficient in jus soli states.88 By comparison, proof of descent from parents that are nationals is necessary in jus sanguinis states, which adhere to the principle that a child's nationality follows that of the parents.89 Proof of nationality in jus sanguinis states is more difficult. It involves not only evidence of descent from the parent who is a national, but also evidence of the parent's nationality.90
      Typically, official documents such as a passport or consular certificate suffice as evidence of nationality.91 Where valid documents are not available, another method of determining nationality is the "effective link" doctrine developed in the Nottebohm case (Liechtenstein v. Guatemala).92 In Nottebohm, the International Court of Justice held that that a person is a national of a country if he or she has a specific, effective link to the country, such that there is a genuine connection between a state and the person.93 The Court defined nationality as "a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties."94 Habitual residence is recognized as an important factor in the determination of an individual's effective link to a country.95 The effective link doctrine can be useful particularly where nationality cannot be established by documentary evidence, as is common with refugees who have fled their countries in fear of war or violence.96
      In the absence of documentary evidence of nationality, international tribunals occasionally allow secondary evidence of nationality or evidence from which nationality may be inferred, such as voting in elections, holding public office, or offering witness testimony as corroborative evidence of nationality.97 The Convention on Conflict was an early attempt to resolve conflicts of nationality laws and defined nationality in terms of habitual residence or other close connection.98 Article 5 of the Convention on Conflict provides that "a third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident, or the nationality of the country with which in the circumstances he appears to be in fact most closely connected."99 In summary, sovereign states have a duty to readmit their nationals. However, each state has wide discretion in determining who is a national. This discretion has led to conflicts amongst the states. Furthermore this conflict aggravates the IIRIRA indefinite detention problem by creating "stateless" individuals.


The Constitution, the Nationality Law, and the Law on Khmer Nationality Identity Cards ("Identity Cards Law") are the most relevant sources of law that deal with Cambodian nationality. The Constitution enumerates the rights and obligations of Khmer citizens.100 The Nationality Law explains, among other things, who is a Khmer citizen.101 The National Identity Cards Law102 provides guidance about what kind of evidence is sufficient to demonstrate citizenship.

A. The Constitution Limits Cambodia's Duty to Admit Nationals

The Agreement on a Comprehensive Political Settlement of the Cambodia Conflict ("Settlement Agreement") is the principal accord of the Paris Accords and contains annexes discussing arrangements of the transitional period, military aspects of the settlement, elections, repatriation of refugees and displaced persons, and constitutional principles.103 Although the Settlement Agreement provides for the right of displaced Cambodians to return home,104 Cambodia's Constitution limits the duty to readmit "Khmer citizens" only.105 The Settlement Agreement provides that "[a]ll persons in Cambodia and all Cambodian refugees and displaced persons shall enjoy the rights and freedoms embodied in the Universal Declaration of Human Rights and other relevant international human rights instruments."106 The Universal Declaration provides for the right to return to one's own country.107 Nevertheless, the Constitution is silent on the rights of undocumented Cambodians, particularly ethnic minorities, to travel in or return to Cambodia. Specifically, Article 33 provides that "Khmer citizens shall not be deprived of their nationality,"108 and Article 40 states that "Khmer citizens shall have the right to travel and settle abroad and return to the country."109 Thus, although the Cambodian government does have a duty to admit nationals to its territory, the scope of the constitutional duty is limited to "Khmer citizens."
      There are two problems with the "Khmer citizen" approach found in the Cambodian Constitution. First, this approach grants no rights to the undocumented non-citizens residents of Cambodia. Such an exclusion of non-citizens violates the ICCPR,110 which states that "everyone lawfully within the territory" has a right to "liberty of movement and freedom to choose his residence."111 The second problem is that the Cambodian Constitution does not define "Khmer citizen."112 Thus, the Cambodian legislature was given the discretion to define who is a citizen.113 In 1994, Cambodia adopted an Immigration Law that detailed the procedures and requirements non-citizens must meet to qualify for citizenship.114 However, the Immigration Law provided no guidance about who is a Khmer citizen.115 In 1996, Cambodia enacted a Nationality Law116 in an attempt to resolve the issue of who is a Khmer citizen.117

B. Cambodia's Nationality Law

Critics have speculated that the drafters of the Nationality Law sought to evade criticism that government officials wished to rid the country of residents who were not of Khmer descent.118 Thus, the Nationality Law adopts a combination of the jus sanguinis and jus soli principles for determining how a person acquires Khmer nationality. Article 4(1) provides the jus sanguinis principle, granting citizenship to a child "regardless of the place of birth" if the child was born from a parent who has Khmer nationality or citizenship.119 Article 4(2) imparts the jus soli principle, granting citizenship to a person "born in the Kingdom of Cambodia[,]" including any child who is "born and living legally in the Kingdom of Cambodia."120

C. Proof of Nationality Under the National Identity Card Law

Cambodia's Nationality Law provides that the Identity Card Law governs proof of nationality.121 The Identity Card Law provides that identity cards can be granted only to Khmer citizens.122 Article 4 provides that government officials shall consider the following factors when deciding whether to issue an identity card: (1) birth certificates; (2) judgments of the court stating that such persons were born from fathers or mothers who have Khmer nationality; (3) royal decrees proclaiming the recognition of the request for Khmer nationality by the concerned persons; (4) royal decrees proclaiming the recognition of the application for Khmer nationality by the concerned persons; (5) documents or evidence proving that the concerned persons were born in Cambodia to fathers or mothers who were born in Cambodia; (6) documents or evidence proving that the concerned persons used to have Khmer nationality, or documents or evidence proving that the concerned persons were born to fathers or mothers who had Khmer nationality; and (7) any documents which could prove that such person is a Khmer citizen.123 The Ministry of Interior examines the evidence of nationality, makes a determination, and receives approval from the Royal Government.124 Khmer national identity cards are valid for ten years from the issue date and must be renewed thereafter.125


For the most part, Cambodia's nationality-related human rights problems are not attributable to a failure to recognize such human rights in its laws, such as the Constitution or the Nationality Law.126 In accordance with international human rights norms, Cambodia's Constitution and the Settlement Agreement impose a duty, although it is limited, to admit nationals. Likewise, the Nationality Law provides a relatively broad definition of who is a Khmer citizen. Instead, the crucial problem lies with both the Cambodian government's frequent disregard for the authority of the Constitution, and the power of corrupt officials.127 For example, the Identity Card Law establishes overly stringent procedures for demonstrating evidence of nationality. This is particularly troubling for Cambodian refugees who fled the country without documentation and have resettled in other countries. Many of these refugees cannot provide adequate proof of nationality by documentation or establish an "effective link" to Cambodia.

A. Difficulties Establishing Proof of Nationality by Documentation

There are several reasons why Cambodian refugees cannot establish nationality by documentation. The official documentation of some refugees was destroyed or lost during the years of civil unrest.128 Some have documentation that the government considers insufficient or old, because the laws for citizenship verification have changed over time.129 Others have obtained their documentation fraudulently from corrupt officials.130

1. Lack of Documentation Because of Civil Unrest

Cambodia's history of civil unrest has forced a massive departure of its citizens into neighboring countries and abroad,131 and as a result, many Cambodian refugees do not have official birth certificates or any other identification to establish their citizenship.132 Over half a million of Cambodia's residents133 fled during the decades of turmoil, and in most of those cases, citizenship records were lost or destroyed.134 The 1975 revolution inspired a massive refugee departure.135 The Vietnamese invasion of Cambodia in 1979 led to another major exodus of refugees.136
      For those Cambodians who returned relatively quickly, the documentation problem was not as serious. By their continued residency, they were eventually able to obtain some documentation, such as government-issued family books used a form of citizenship identification or government identification cards.137 However, nationality has been more difficult to prove for those Cambodians who resettled in other countries. As most refugees who escaped persecution and resettled in a third country had little or no contact with Cambodia for years, their options for obtaining nationality documentation became limited.138 In short, political instability has caused hundreds of thousands to flee Cambodia with no way of obtaining documentation.

2. Inadequate Documentation Because of New Laws

Because the current government may not recognize Cambodian identification cards issued from previous regimes,139 even those Cambodians who do possess identification can face citizenship documentation problems.140 Thus, even those who fled Cambodia with identification may not be recognized as nationals upon their return.141 The current Cambodian government is generally unwilling to recognize old identification cards, fearing that the cards were sold to aliens or illegally issued by corrupt officials.142
      Furthermore, nationality verification systems continue to change. Following the Peace Accords, the United Nations established the UNTAC in Cambodia to create a neutral political environment to hold free and fair elections.143 UNTAC supervised the first national election in Cambodia in 1993 and assisted in the registration of eligible voters.144 This system identified citizens by providing identification cards to Cambodian citizens under the State of Cambodia.145 UNTAC acknowledged the citizenship of any resident who was born in Cambodia or who had lived in Cambodia for a minimum of five years.146 However, following the departure of UNTAC, the new regime instituted a new identification system in 1999, replacing the registration papers issued and recognized by UNTAC and previous governments.147 These arbitrary policy changes impose an undue burden on undocumented citizens to verify their nationality. In addition, such changes allow government officials excessive discretion in determining who is a qualified citizen entitled to the rights protected under the Constitution.

3. Corruption and Fraudulent Documentation

Concerns over illegal immigrants fraudulently obtaining nationality identification have led officials to question the legitimacy of identification cards, especially when the person who possesses the card is an "undesirable", i.e., an ethnic minority.148 Without question, corruption flourishes in Cambodia, in large part because the military, the police, and other civil servants are not well paid.149 Although Cambodian citizenship requirements are rigid, problems on applications are often over-looked when the applicant offers money or gifts to the reviewing official(s).150 In addition, the laws are often unclear and applied at the discretion of government officials who lack basic training and skills to properly execute the laws.151
      Corrupt officials and weak border control have allowed Cambodia to become a common transit point for illegal aliens and a safe haven for those seeking to evade the law.152 Many pay thousands of dollars to purchase false documents in order to reach destinations via Cambodia.153 For example, between January and March 2000, Cambodia deported 700 illegal Chinese immigrants.154 Cambodian police found these illegal aliens, awaiting documentation to enter such countries as Australia, the United States and France, after raids on homes owned by military officials.155 The government blames the influx of illegal immigrants, and the failure to combat it, on corruption within the police.156 Others blame this immigration problem on a lack of training and supervision of immigration officials.157 As a result of the problem with illegal immigrants, the Cambodian government has adopted exclusionist immigration and nationality laws.158
      In summary, political instability, changing laws and corruption aggravate the nationality documentation problem in Cambodia and result in statelessness for many undocumented Cambodians. Furthermore, without a fair and reliable nationality documentation system, Cambodia is unlikely to reach a repatriation agreement with the United States.

B. Difficulties Establishing Proof of Nationality by the "Effective Link" Doctrine

Absent acceptable documentary evidence, the "effective link" doctrine can establish citizenship, according to international law.159 Habitual residence and sufficient connection with the country are important factors in establishing an "effective link."160 Similarly, the Identity Card Law establishes residence and a willingness to maintain ties with the country as important criteria in determining nationality. However, corruption and the broad discretion given to Cambodian officials are difficult hurdles to overcome for those refugees who resettled elsewhere but wish to return under the "effective link" doctrine.
      Each state decides for itself what constitutes adequate proof of an "effective link" where documentary evidence is not available.161 In Cambodia, if the resettled refugee has no citizenship documentation, officials often conduct an interview to decide whether to readmit the refugee.162 The officials consider several factors, including where the refugee was born, family ties to Cambodia, when the refugee left Cambodia, how long the refugee has lived in their current country of residence, and how well the refugee speaks Khmer.163 Applicants for new identification cards must present, at a minimum, proof of former long-term residence in Cambodia, fluency in the Khmer language, and familiarity with Cambodian culture.164 It may be necessary to confirm former residence by means of testimony from neighbors or others who can confirm the former residence of the individual concerned. These discretionary factors can be difficult to prove and can provide opportunities for abuse of power by officials.
      The negative impact of this discretion on refugees is illustrated by the ethnic Vietnamese's flight from their Cambodian homes after a Siem Reap massacre in 1993.165 The Cambodian government later prevented their return, claiming that they were Vietnamese with no history of residence or right to return.166 However, when the United Nations and human rights groups such as Amnesty International conducted interviews to determine the effective link of the individuals to Cambodia, they concluded that the refugees had significant ties to the country.167 Many had lived in Cambodia for generations, yet this evidence was insufficient to the Cambodian government, who claimed they lacked sufficient official documentation to prove citizenship.168 Some had identity cards, but the cards were issued under previous governments. Under significant international pressure, the Cambodian authorities worked in cooperation with the United Nations High Commissioner for Human Rights ("UNCHR"), and Cambodian non-governmental organizations to create a register of ethnic Vietnamese refugees from Cambodia.169
      The broad discretion accorded Cambodian officials in making nationality decisions is not the international norm. For example, in other countries that have experienced an influx of refugees, the countries of origin have usually recognized that it is impracticable or impossible to verify the identity of each individual, and have accepted UNHCR or other records as reliable evidence.170 Despite this trend, Cambodia continues not to recognize such evidence.171 In short, the "effective link" doctrine in concert with the Identity Card Law provides a means to determine citizenship without documentation. However, a refugee's ability to establish an "effective link" to Cambodia becomes more difficult the longer the refugee is away from the country. In addition, the Identity Card Law leaves the "effective link" determination to the discretion of Cambodian officials, who have a history of abuse of power and disregard for human rights.


A United States delegation is currently attempting to negotiate an agreement with Cambodia to repatriate convicted aliens.172 Encouragingly, Cambodian officials have begun to conduct interviews with detainees seeking admission to the country. They have agreed to review detainee questionnaires to determine whether an "effective link" exists.173 The questionnaire focuses on the detainee's residency in Cambodia and includes the following lines: "address before departing for the United States," "present address," "occupation and place before 1970," "occupation and place from 1970-1975," "occupation and place from 1975-1979," and "occupation and place from 1979 onward."174 However, it is likely that many refugees will not be able to establish an "effective link" to Cambodia because they have resided in the United States since they were young, such as at the age of six in Ma's case.


The Supreme Court should affirm the Ninth Circuit in Ma v. Reno and order the INS to release indefinite detainees who have completed their sentences and cannot be repatriated. The INS justifies the indefinite detention of "undeportable" criminal aliens on the assumption that the alien will someday become "deportable." The INS points to the international duty to readmit citizens and argues that the United States will negotiate repatriation agreements with every country. However, an examination of Cambodian nationality policies demonstrates otherwise. Cambodia's arbitrary nationality policies and political instability make a repatriation agreement with the United States unlikely. While Cambodia's Constitution and its Nationality Law grant the right to travel and reenter the country to "Khmer citizens," decades of war, changing laws, and corruption have left many Cambodians without documentation of their citizenship. Further, refugees who have remained in the United States most of their lives cannot establish an "effective link" with Cambodia. Moreover, the broad discretion granted to Cambodian nationality officials can lead to arbitrary citizenship determinations. Thus, the INS has based its justification for indefinite detention on a faulty assumption. Detainees' liberty should not be indefinitely restrained because the United State is unable to negotiate a repatriation agreement or because the detainee's native country is unwilling to accommodate their return.

On 28 June 2001, the Supreme Court ruled 5-4 in Zadvydas v. Davis that the government may not detain deportable aliens indefinitely simply for lack of a country willing to take them. The decision rejected the government's view that immigration law authorized and the Constitution permitted indefinite, even lifelong detention of immigrants adjudged deportable but unable to be repatriated.
     Justice Stephen G. Breyer's majority opinion stated that the court would construe the law to permit only "reasonable" detention. If deportation did not seem likely in the "reasonably foreseeable future" after six months of detention, the government would have to come up with special reasons for keeping someone in custody.
     The majority opinion was joined by Justices Sandra Day O'Connor, John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.


1 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (codified in scattered sections of 8 U.S.C.). In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") was passed by a bipartisan majority in Congress and signed by President Clinton in response to the public's anti-crime and anti-immigration sentiments. The IIRIRA is an attempt to slow illegal immigration by increasing the number of border patrols, limiting judicial review, and introducing new penalties for a variety of immigration control violations. See Trevor Morrison, Removed from the Constitution? Deportable Aliens' Access to Habeas Corpus Under the New Immigration Legislation, 35 COLUM. J. TRANSNAT'L L. 697, 697 (1997).
2 For a list of "deportable" crimes, see 8 U.S.C. § 1227(a)(2) (2000), which includes crimes of moral turpitude, aggravated felony, high speed flight, possession of controlled substance, possession of a firearm, domestic violence, stalking, child abuse, and failure to register and falsification of documents.
3 Id. § 1231(a).
4 8 U.S.C. § 1231(a)(1)(A)-(B) provides for the detention, release, and removal of aliens ordered removed: [W]hen an alien is ordered removed, the Attorney General shall remove the alien from the United states within a period of 90 days . . ." and the "removal period begins on the latest of the following: (i) The date the order of removal becomes administratively final; (ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order; (iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement. 8 U.S.C. § 1231(a)(1)(A)-(B).
5 See Varied Routes Led Immigrants to INS Custody, SEATTLE P-I, June 17, 1999, at B1 [hereinafter Varied Routes] (giving reasons that include lack of proper documentation of citizenship, fraud in obtaining documents, and successive government's refusal to acknowledge the prior government's form of identification).
6 A legal "permanent resident" is an immigrant who has been granted the privilege of residing permanently in the United States. 8 U.S.C. § 1101 (2000).
7 8 U.S.C. § 1231(a).
8 See Varied Routes, supra note 5.
9 For reports of the disruption of the family unit as a result of the deportation of convicted aliens under IIRIRA, see Chris Hedges, Spousal Deportation, Family Ruin as Breadwinners Are Exiled, N.Y. TIMES, Jan. 10, 2001, at NY Region; Jenifer Hanrahan, Blind Justice; Does Immigration Law Cross a Line When It Rips Families Apart?, SAN DIEGO UNION-TRIB., May 21, 2000, at D1; Anthony Lewis, Cases That Cry Out, TULSA WORLD, Mar. 26, 2000, at 6; Susan Levine, On the Verge of Exile; For Children Adopted From Abroad, Lawbreaking Brings Deportation, WASH. POST, Mar. 5, 2000, at A1; Lise Olsen, Old Convictions Haunting Families Starting New Lives, SEATTLE P-I, Apr. 7, 1999, at A1.
10 Olsen, supra note 9.
11 FY2001 Budget for the FBI, DEA and INS: Hearing of the Commerce, Justice, State and Judiciary Subcommittee of the Senate Appropriations Committee, 106th Cong. (2000) [hereinafter Hearing] (discussing the fiscal year 2001 budget for the INS).
12 Id.
13 See Florangela Davila, Immigrants' Case Going to High Court, SEATTLE TIMES, Feb. 21, 2001, at B1; Monica Whitaker, Laotian in Legal Limbo Tougher Legislation Often Makes Trouble With the Law an Even Bigger, THE TENNESSEAN, Oct. 23, 2000, at 1A.
14 Since the enactment of IIRIRA, the number of habeas petitions filed by detainees seeking release from detention have increased significantly, causing an administrative backlog. See Hearing, supra note 11.
15 Ma v. Reno, 208 F.3d 815 (9th Cir. 2000), cert. granted, 69 U.S.L.W. 3257 (U.S. Oct. 10, 2000) (No. 00-38); see also Varied Routes, supra note 5.
16 See infra Part II.A.
17 See discussion infra Part II.B.
18 Ma, 208 F.3d at 821.
19 See Hedges, supra note 9; Hanrahan, supra note 9; Lewis, supra note 9.
20 See Davila, supra note 13.
21 8 U.S.C. § 1231(a)(2).
22 Id. § 1227(a)(2).
23 For example, an aggravate felony conviction invokes the same strict exclusionary and deportability standards that apply to all aliens, regardless of their status. See Bruce Robert Marley, Exiling the New Felons: The Consequences of the Retroactive Application of Aggravated Felony Convictions to Lawful Permanent Residents, 35 SAN DIEGO L. REV. 855, 873 (1998).
24 Id. § 1231(a)(1)(C).
25 Id. § 1231(a)(6).
26 The use of indefinite detention to deter repeat offenses is a questionable objective, particularly in the situation where the alien has only committed a minor offense or where the detainee has exemplified rehabilitative behavior. See Ma, 208 F.3d at 819 (disapproving of the Attorney General's characterization of Ma as a "danger to the community").
27 Id. at 821.
28 Id.
29 See infra Part VI.
30 For arguments for long-term detention by an INS official, see Varied Routes, supra note 5; see also infra Part III.
31 See Barry Newman, Slender Mercies: U.S. Moves Swiftly to Deport Aliens with Prison Records, WALL ST. J. EUROPE, July 12, 1999, available at 1999 WL-WSJE 18408832.
32 Telephone Interview with Jean Christensen, District Director for Immigration and Naturalization Service, U.S. Embassy in Bangkok (May 10, 2000).
33 Telephone Interview with Nou Hak, Political Consular, Cambodian Embassy in Washington, D.C. (May 10, 2000) [hereinafter Nou Hak].
34 Lise Olsen, 'Men Without Countries' Create a Class of Unremovables, SEATTLE P-I, Apr. 6, 1999, at A1. A similar reason was provided by a Vietnamese police chief regarding the acceptance of convicted aliens ordered deported from the United States: "When they left my country they were small children, they went to the camps and then they went to your inner cities and became hardened criminals. We don't want them." Id. Vietnam, like Cambodia, does not have a repatriation treaty with the United States and similarly has not offered repatriation to the indefinite detainees ordered deported to its country. Id.
35 Nou Hak, supra note 33.
36 Id.
37 See, e.g., Zadvydas v. Underdown, 185 F.3d 279, 279 (5th Cir. 1999) cert. granted, 69 U.S.L.W. 3257 (U.S. Oct. 10, 2000) (No. 99-7791) (holding that long-term detention of removable aliens who have been ordered deported does not violate substantive due process); Ho v. Greene, 204 F.3d 1045, 1057 (10th Cir. 2000) (concluding that because § 1231(a)(6) was silent as to any time duration, "Congress intended to and expressly did authorize the Attorney General to indefinitely detain certain removable aliens").
38 Ma, 208 F.3d at 818.
39 Interview with Jay Stansell, Federal Public Defender, in Seattle, Wash. (May 2, 2000) [hereinafter Jay Stansell].
40 Id.
41 Interview with Kim Ho Ma in Seattle, Wash. (June 8, 2000) [hereinafter Kim Ho Ma].
42 Id.
43 Id.
44 Id.
45 Id.
46 8 U.S.C. § 1231(a)(6) authorizes the Attorney General to detain an alien beyond the removal period if the Attorney General determines that the alien is a "risk to the community or unlikely to comply with the order of removal."
47 The determination that Ma was a "risk to the community" was made by an INS deputy director despite the fact that Ma's manslaughter conviction was his only criminal conviction and an INS report that shows that Ma is likely to be rehabilitated if released. Ma, 208 F.3d at 819.
48 See 8 U.S.C. § 1227(a)(2).
49 Id. at 819.
50 Kim Ho Ma, supra note 41.
51 Ma, 208 F.3d at 818.
52 See Ma, 208 F.3d at 819. Over 100 detainees filed habeas corpus petitions seeking release from INS detention. The district court designated five lead cases that presented issues common to all petitioners and directed the parties to brief and argue those issues before five district court judges. The five district court judges issued a joint order establishing a legal framework to apply to each individual case. Judge Robert S. Lasnik issued the opinion in Ma v. Reno. Id. at 815.
53 Other Southeast Asian countries that have refused to readmit criminal aliens from the U.S. are Laos and Vietnam. See Varied Routes, supra note 5.
54 Ma, 208 F.3d at 818.
55 See Carri Geer, Immigrants Finally Find Freedom, LAS VEGAS REV.-J., July 10, 2000, at 1B.
56 See Zadvydas, 185 F.3d at 279.
57 See Ho, 204 F.3d at 1057.
58 Alex Tizon, Should Sentence Alone Set Captivity? Cambodian's Case Illustrates Argument, SEATTLE TIMES, Feb. 15, 2000, at B1.
59 See infra Part III.A.
61 Id. at 133-34.
62 Id.
63 GUY S. GOODWIN-GILL, INTERNATIONAL LAW AND THE MOVEMENT OF PERSONS BETWEEN STATES 201, 255-61 (1978). Proponents of the doctrine of "legitimate expectations" of the alien who is admitted for any substantial period of time, especially one who is admitted for permanent residence, advance the argument that such aliens have interests which warrant more protection than those who have just arrived. This follows the belief that such "alien who is deported suffers a punishment distinctive by reason of his alienage, and the longer he has been resident in the host country, the greater will be the hardship." Id. at 261.
64 PLENDER, supra note 60, at 134-37.
65 Universal Declaration of Human Rights art. 13(2), U.N. GAOR, 3d Sess. at 71, U.N. Doc. A/810 (1948) [hereinafter Universal Declaration].
66 The Universal Declaration is not a treaty and thus has no force of law. Its purpose is to provide goals and principles that each country should aspire to achieve. THOMAS BUERGENTAL, INTERNATIONAL HUMAN RIGHTS IN A NUTSHELL 29 (1988).
67 Id. at 31-33.
68 Article 12(4) provides that "[n]o one shall be arbitrarily deprived of the right to enter his own country." International Covenant on Civil and Political Rights, art. 12(4), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966) (entered into force Mar. 23, 1976) [hereinafter ICCPR].
69 Article 5(d)(ii) provides that States Parties would undertake to guarantee everyone "[t]he right to leave any country, including one's own, and to return to one's country." International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, art. 5(d)(ii), 660 U.N.T.S. 195, 220 [hereinafter Convention on Discrimination].
70 PLENDER, supra note 60, at 134-35.
71 Stephen P. Marks, The New Cambodian Constitution: From Civil War to a Fragile Democracy, 26 COLUM. HUM. RTS. L. REV. 45, 70 n.88, 94 n.152 (1994).
73 PLENDER, supra note 60, at 134.
75 Convention on Certain Questions Relating to the Conflict of Nationality Laws, Apr. 12, 1930, art. 1, 2 179 L.N.T.S. 89, 99 [hereinafter Convention on Conflict].
76 Id. art. 1.
77 Convention Relating to the Status of Stateless Persons, opened for signature Apr. 26, 1954, art. 1, 360 U.N.T.S. 117, 136.
78 Universal Declaration, supra note 65, art. 15.
80 Convention on Discrimination, supra note 69, at 216.
81 Id. art. 5.
82 Marks, supra note 71, at 94 n.152.
83 WEIS, supra note 74, at 204.
84 Convention on Conflict, supra note 75, art. 2, 179 U.N.T.S. at 101.
85 Id. art. 2.
86 PLENDER, supra note 60, at 149.
87 WEIS, supra note 74, at 95. Jus soli is translated as "law of the soil." GERHARD VON GLAHN, LAW AMONG NATIONS: AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW 205 (6th ed. 1992). Jus sanguinis is translated as "law of the blood." Id. at 206.
88 Id.
89 Id.
90 Id. at 217.
92 The Nottebohm Case (Liechtenstein v. Guatemala), 1955 I.C.J. 4, 23 (Apr. 6) [hereinafter Nottebohm]. See VON GLAHN, supra note 87, at 207.
93 Nottebohm, 1955 I.C.J. at 24.
94 Id. at 23.
95 DONNER, supra note 91, at 61.
96 Amnesty Int'l, Nationality, Expulsion, Statelessness and the Right to Return, AI INDEX: ASA 14/01/00 (Sept. 2000), at 14, Amnesty Int'l Library (Bhutan), at
97 WEIS, supra note 74, at 216.
98 Convention on Conflict, supra note 75, art. 5, 179 L.N.T.S. at 101; see WEIS, supra note 74, at. 163.
99 Id.
100 The Constitution of the Kingdom of Cambodia, in 3 Constitutions of the Countries of the World (Albert P. Blaustein & Gisbert H. Flanz eds., 1994) [hereinafter Cambodia Const.].
101 Law on Nationality (adopted by the National Assembly Aug. 20, 1996) ch. I, art. 2 (Cambodia), in Laws and Regulations of Cambodia, at (last visited Feb. 21, 2001) [hereinafter Nationality Law].
102 Sub-Decree on Khmer Nationality Identity Cards (adopted by the Prime Minister July 26, 1996) (Cambodia), in Laws and Regulations of Cambodia, at (last visited Feb. 21, 2001) [hereinafter Identity Cards Law] .
103 The agreements signed in Paris on October 23, 1991, include a set of four documents: (1) Final Act of the Paris Conference; (2) Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, with Annexes [hereinafter Settlement Agreement]; (3) the Agreement Concerning the Sovereignty, Independence, Territorial Integrity and Inviolability, Neutrality and National Unity of Cambodia; and (4) the Declaration on the Rehabilitation and Reconstruction of Cambodia.
104 See Settlement Agreement, supra note 103, art. 20, pt. V; see also Universal Declaration, supra note 65, art. 13(2).
105 See CAMBODIA CONST., supra note 100, arts. 33, 40.
106 Settlement Agreement, supra note 103, art. 15, pt. III. Pertinent human rights convention include the ICCPR, supra note 68, the International Covenant on Economic, Social, and Cultural Rights, and the Convention on Discrimination, supra note 69. Steven R. Ratner, The Cambodian Settlement Agreements, 87 Am. J. Int’l L. 25-26 (1993).
107 Universal Declaration, supra note 65, art. 13(2).
108 CAMBODIA CONST., supra note 100, art. 33.
109 Id. art. 40.
110 See ICCPR, supra note 68, art. 12(4).
111 Marks, supra note 71, at 126.
112 Jennifer S. Berman, No Place Like Home: Anti-Vietnameses Discrimination and Nationality in Cambodia, 84 Calif. L. Rev. 821-22 (1996).
113 Nationality Law, supra note 101, pmbl.
114 Law on Immigration (adopted by the National Assembly Sept. 22, 1994) (Cambodia), in LAWS OF CAMBODIA 113-28 (Sok Siphana ed., 1998) [hereinafter Immigration Law].
115 Berman, supra note 112, at 817.
116 Nationality Law, supra note 101.
117 See Sokhet Ros, Cambodia: Nationality Law Gets the Nod After Heated Debate, CAMBODIA TIMES, Aug. 26, 1996, available at 1996 WL 11707210.
118 Berman, supra note 112, at 821. Human rights activists speculated that Cambodia's legislature was reluctant to define nationality because it did not want the Vietnamese to seek citizenship. Some also speculated that the Cambodian legislature was prepared to deport all of its ethnic Vietnamese residents back to Vietnam following the enactment of the nationality law. Id. at 822
119 Nationality Law, supra note 101, art. 4(1).
120 Id. art. 4(2).
121 Nationality Law, supra note 101, art. 5.
122 Identity Card Law, supra note 102, art. 3.
123 Id. art. 4.
124 Id. art. 5.
125 Id. art. 2.
126 Marks, supra note 71, at 55.
127 Id.
128 See infra Part VI.A.1.
129 See infra Part VI.A.2.
130 See infra Part VI.A.3.
131 Marjoleine Zieck, UNHCR and Voluntary Repatriation of Refugees: A Legal Analysis 131-38 (1997).
132 Berman, supra note 112, at 870.
133 ZIECK, supra note 131, at 138.
134 Amnesty Int'l, supra note 96, at 37.
135 ZIECK, supra note 131, at 133.
136 Id. at 138.
137 Marks, supra note 71, at 78.
138 See Amnesty Int'l, supra note 96, at 37.
139 Sotheacheath Chea, Cambodian? The ID Issue, PHNOM PENH POST, Feb. 4, 2000, Full Edition, at
140 Id.
141 See generally Controversial Cambodian Nationality Law to Go to Parliament, DEUTSCHE PRESSE-AGENTUR, Dec. 8, 1995, available at LEXIS, News Library, Asia/Pacific Rim Archive.
142 Chea, supra note 139.
143 Ratner, supra note 106, at 14, 21, 25.
144 Id. at 13-19.
145 Id.
146 Id. at 235.
147 Chea, supra note 139.
148 See, e.g., Ros, supra note 117. A Cambodian politician expressed the fear that is prevalent in Cambodia, "[t]here are many illegal immigrants from Vietnam and Thailand and they hold fake identification papers which are given to them by corrupt Cambodian officials." Id.
149 See General Accounting Office, Cambodia-Limited Progress on Free Elections, Human Rights, and Mine Clearing, Briefing Report to the Chairman and Ranking Minority Member, Committee on International Relations, House of Representatives, GAO/NSIAD 96-15BR, Briefing Section II, Feb. 29, 1996 [hereinafter Limited Progress].
150 Electronic Interview with Ratha Panh, Cambodian attorney in Phnom Penh, Cambodia (May 22, 2000) [hereinafter Ratha Panh].
151 Limited Progress, supra note 149.
152 Cambodian Police Nab 98 More Illegal Chinese Immigrants, AGENCE FRANCE PRESSE, Oct. 18, 1999, available at LEXIS, News Library, Agence France Presse File; Marjorie Miller, In Europe, Wave of Illegal Migration Has Deadly Cost, LOS ANGELES TIMES, July 15, 2000, at A1.
153 Id.
154 Cambodia Deports More than 60 Illegal Immigrant Chinese, JAPAN POL'Y & POL., Mar. 6, 2000, available at LEXIS, News Library, Asia/Pacific Rim Stories.
155 See supra notes 152 and 154. 156 Cambodia to Give Cash for Tip on Illegal Immigrants, ASIAN POLITICAL NEWS, Nov. 1, 1999, available at LEXIS, News Library, Asia/Pacific Rim Stories. Cambodia's police chief, Hok Lundy, stated that "hundreds of illegal Chinese immigrants and an estimated 70,000-100,000 Vietnamese are living illegally in Cambodia." Id.
157 Ratha Panh, supra note 150.
158 Will Immigration Law Lead to Mass Expulsion?, INTER PRESS SERVICE, Oct. 19, 1994, available at 1994 WL 2722877.
159 Nottebohm, 1955 I.C.J. at 24.
160 Id.
161 WEIS, supra note 74, at 204. As a general rule, the choice of law in determining nationality is the law of the State whose nationality is to be proved. Id.
162 Nou Hak, supra note 33.
163 Id. The above stated factors are also considered in the naturalization procedure in Cambodia. See Nationality Law, supra note 101, art. 8
164 Id.
165 Amnesty Int'l, supra note 96, at 15-16.
166 Id.
167 Id.
168 Id.
169 Id.
170 Id.
171 Nou Hak, supra note 33.
172 Christensen, supra note 32.
173 Nou Hak, supra note 33.
174 Questionnaire on file with the author.

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