LEGAL ARGUMENTS FOR CAMBODIANS
IN DEPORTATION PROCEEDINGS
by CAAAV and NYU Immigration Rights Clinic, New York, NY
In March of 2002, the United States and Cambodia negotiated a Memorandum Between the Royal Government of Cambodia and the Government of the
United States for the Establishment and Operation of a Cambodia-United States Joint Commission on Repatriation ("Repatriation Agreement") that allows for the deportation of Cambodians in the United States to Cambodia. Prior to this agreement, the United States could not deport Cambodians because Cambodia would not accept them. Since the repatriation agreement was consummated between the two countries, a number of Cambodians have already been deported. In response to these events, advocates have been working on legal theories to stop the deportation of Cambodians.
The Immigrant Rights Clinic of NYU School of Law has been working with the Khmer Freedom Project of CAAAV: Organizing Asian Communities to identify and develop legal arguments to stop these deportations. As part of this work, we have surveyed advocates regarding potential theories that may be useful specifically to Cambodians in deportation proceedings. In this document, we outline two theories that have been advanced by other advocates, as well as one theory that we have developed, but that has not yet been tested. The theories are alternative arguments and may not be appropriate for all cases. For example, the refugee waiver theory detailed below requires your client to assert that she remains a refugee even after adjustment of status to lawful permanent resident ("LPR") under INA § 209, 8 U.S.C. § 1159, while the national theory requires your client to assert that he or she lost refugee status through adjustment of status under INA § 209. You may want to assert both theories by saying that your client is either a national because refugee status has terminated or is entitled to a refugee waiver because refugee status has not terminated. Based on your client's specific experiences and the alleged grounds for removal, it may make sense to plead one or more of these theories.
It should be noted that these claims, which are specific to Cambodians or to refugees, are novel. Thus, they should supplement, rather than replace, the traditional remedies sought for individuals facing deportation (i.e. asylum, withholding, St. Cyr relief, governor's pardons, disproving grounds of deportability).
I. Refugee Waiver Theory
Robert Pauw advanced an argument for a Cambodian he represented in a habeas action in federal district court that has the potential to allow Cambodians in proceedings to obtain discretionary relief from deportation. An important factor to consider in pursuing this claim is that the Attorney General has recently clarified that the seriousness of the crime is a major factor in determining eligibility for this discretionary relief; therefore, this theory may be most useful where the individual's crime is less serious. See In Re Melanie Beaucejour Jean, 23 I. & N. Dec. 373, 383 (2002). Mr. Pauw argues that refugees retain their refugee status even after they are lawfully admitted for permanent residence under INA § 209(a), unless their refugee status is specifically terminated by the INS under 8 C.F.R. § 207.9, the only provision outlining a procedure for termination of refugee status. Thus, refugees who adjust status are both refugees and LPRs. This dual status of refugee and LPR entitles refugees to waive some of the traditional bars to remaining in the United States. See 8 U.S.C. § 1159(c). The waiver is traditionally applied to refugees who are in the process of adjusting their status for the first time, generally one year after they enter the country; however, Mr. Pauw argues that the language of the INA allows for the application of the waiver to refugees even after adjustment of status. The § 209(c) waiver is granted by the Attorney General and is discretionary. It is granted "for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest." Id. In Mr. Pauw's case, Sun v. Ashcroft, C02-1311Z, the Western District of Washington ultimately rejected the idea that a person retains refugee status even after adjusting to LPR status. The case is currently on appeal to the Ninth Circuit (No. 02-36132).
Mr. Pauw requested and received an opinion letter from the United Nations High Commissioner for Refugees stating that refugees who adjusted to LPR status did not lose refugee status under the Protocol and were therefore still entitled to the Protocol's protections. This letter was reprinted at 80 Interpreter Releases 412 (March 17, 2003).
For further information regarding this claim, contact Robert Pauw at email@example.com or (206) 224-8791.
II. Argument that Cambodians who came to the U.S. as Refugees are Nationals of the U.S.
We have developed a theory that may aid Cambodians who originally came to the United States as refugees and have become LPRs under INA § 209(a). Although it is geared toward Cambodians, the argument might also be made for refugees from other countries who have adjusted to LPR status under INA § 209(a). This argument has not yet been formally presented in proceedings, but we are currently developing a model brief that would aid practitioners in presenting the claim. The theory, as well as the practical steps necessary to assert it, are detailed below.
Although this claim may be broadly applicable to all Cambodians who came as refugees to the United States and adjusted status under INA § 209, it will likely be most successful where there are other indicia of an individual's "permanent allegiance" to the United States, for example: an application for citizenship, long term residence, ties to the community, or registration for Selective Service.
A. Summary of the argument
The theory we have developed is premised on the argument that Cambodians who entered the United States as refugees and were ultimately lawfully admitted for permanent residence under INA § 209(a) are not subject to deportation because they are nationals of the United States. Under the INA, only "aliens" are subject to deportation from the United States. INA § 237(a); 8 U.S.C. § 1227(a). An alien, according to the INA, is "any person not a citizen or national of the United States." INA § 101(a)(3); 8 U.S.C. § 1101(a)(3). A "national" is a "person who, though not a citizen of the United States, owes permanent allegiance to the United States." INA § 101(a)(22); 8 U.S.C. § 1101(a)(22). If it is possible to show that Cambodian refugees are nationals, they would be undeportable. In other litigation, the position of the INS and the Department of Justice has been that, other than citizens, only those people born in U.S. territories can be classified as nationals. There is precedent, however, that the definition of national is more expansive: for example, courts have found that certain persons who have applied for and not been granted citizenship are nationals.
The nationality claim is founded on a combination of U.S. immigration law and international law regarding the status of refugees. In 1968, the U.S. acceded to the Protocol Relating to the Status of Refugees, an international Protocol governing the status and treatment of refugees by countries who are signatories to it. The Protocol essentially sets out two models for contracting states who accept refugees: 1) temporary residence until refugees reassert or can safely reacquire their former nationality; and 2) permanent resettlement of refugees. Under the first model, a refugee continues to be a refugee and remains under the protection of the Protocol until she returns to the country from which she fled or re-avails herself of its protections. Under the second model, refugee status ceases to apply where a refugee has acquired a new nationality and enjoys the protections of the country of his new nationality.
Both precedent and legislative history support the idea that U.S. immigration law with respect to refugees is intended to comport with the Protocol. Based on this, the following legal argument arises. U.S. law requires refugees to adjust their status to that of persons lawfully admitted for permanent residence ("LPRs") after one year of residence. The Board of Immigration Appeals ("BIA") has found that at the point when a refugee makes this adjustment, she is no longer a refugee. See In re Bahta, 22 I&N Dec. 1381, FN2. As noted above, a refugee can only be divested of her refugee status, and the protections of the Protocol, if she either returns to the country from which she fled or if she has a new nationality. The latter condition is the only one that could apply to refugees who are adjusting to LPR status under U.S. law. It applies for two reasons: 1) Refugees who permanently resettle in the United States fit the definition of national under INA § 101(a)(22); 2) Any ambiguity in INA § 101(a)(22) must be resolved to grant national status so that U.S. law does not conflict with the Protocol. Consequently, by insisting that refugees lose their refugee status when they adjust, the only way for U.S. law to be consistent with the Protocol is if those refugees who adjust status to LPR become nationals.
B. Steps to preserve the argument for a client in administrative proceedings
1. Deny alienage
In order to preserve and litigate the national theory, a person in removal proceedings must deny that she is an alien and assert that she is a national at the earliest possible stage in her proceedings. Even if your client has already conceded alienage in a former proceeding, you should assert that she is not an alien at the next available opportunity. Arguably, this can be done at any stage in the proceedings since whether a person is an alien is a basic jurisdictional fact in removal proceedings.
2. Move to terminate proceedings on the basis that your client is not an alien
In conjunction with the assertion that your client is not an alien, you can move to terminate the proceedings on that ground. In order to get favorable facts into the administrative record for your client, you should attach to your motion to terminate any documents that demonstrate facts that support your client's claim that she owes "permanent allegiance" to the United States. The argument that a former Cambodian refugee is a national because she has permanent allegiance to the United States can be made based on the fact of previous refugee status and adjustment of status alone. However, it will also be helpful to include additional facts specific to your client's situation that can be construed as demonstrating permanent allegiance. Factors that have been important to courts in this context have been an application for citizenship, United States v. Morin, 80 F.3d 124, 126 (4th Cir. 1996); Hughes v. Ashcroft, 255 F.3d 752, 757 (9th Cir. 2001); Sierra-Reyes v. INS, 585 F.2d 762 (5th Cir. 1978); Carreon-Hernandez v. Levi, 409 F. Supp. 1208, 1210 (D. Minn. 1976), long term residency, ties to the community, and registration for Selective Service. See Shittu v. Elwood, 204 F. Supp. 2d 876 (E.D. Pa. 2002). Note also that courts do not hold this to be an exhaustive list of factors. For example, service in the armed forces would likely be considered an affirmative act. 3. Preserve the claim through administrative appeal
If your client ultimately receives an adverse decision from the IJ, appeal to the BIA within 30 days to preserve the issue.
C. Steps to assert the argument for a client with a final order of removal
After receiving a final order of removal from the BIA, an individual can consider pursuing either a petition for review in the applicable circuit court of appeals, a habeas petition in the district court, or both.
The clearest avenue to jurisdiction is through a petition for review. A petition for review must be submitted no later than 30 days after the date of the final order of removal. INA § 242(b)(1); 8 U.S.C. § 1252(b)(1). The "criminal alien" bar to petitions for review, established by INA § 242(a)(2)(C), does not apply where the petitioner claims she is a national. INA § 242(b)(5) provides that a court of appeals may consider a petitioner's claim of nationality and, if it finds that a genuine issue of material fact is presented regarding the petitioner's nationality, it shall transfer the proceeding to the district court in which the petitioner resides for a new hearing on the nationality claim. If no genuine issue of material fact about the petitioner's nationality is presented, the court of appeals must decide the nationality claim. INA § 242(b)(5).
It is possible that a decision on the merits by the circuit in a petition proceeding may be held against an individual in any subsequent challenge to the final order of removal (i.e. habeas petition).
Another potential route for review of a final order is through the habeas corpus jurisdiction of the federal district courts. In fact, if your client has missed the 30 day window to file a petition for review, the only option for review may be a habeas action. A number of courts have held, based on INA § 242(b)(5), that the district courts do not have jurisdiction to review claims of nationality through habeas. See Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir. 2002) (holding that jurisdiction was lacking in district court for determination of citizenship because § 1252(b)(5) of the INA provides the exclusive means of determining citizenship for aliens in removal proceedings); Alvarez-Garcia v. U.S. I.N.S., 234 F.Supp. 283, 290 (S.D.N.Y. 2002) (holding that claim of nationality in habeas proceeding must be dismissed or transferred to Court of Appeals). There is a strong argument to be made, however, that because the text of § 242(b)(5) does not expressly mention habeas jurisdiction, that section cannot be construed to repeal it. See INS v. St. Cyr, 533 U.S. 289 (2001).
For further information on the national claim, please contact Haeyoung Yoon at (646) 459-3003 or firstname.lastname@example.org.