Politico
By David Rogers
August 14, 2017
President Donald Trump’s “get tough” approach to immigration is now impacting — of all people — the Montagnard hill tribesmen who fought alongside the Green Berets in the Vietnam War.
The son of one such Montagnard veteran was deported back to Vietnam in July, a stunning move for many in the refugee community because of their history in the war and the continued evidence of political and economic mistreatment of Montagnards in Vietnam.
The action came in the immediate aftermath of new White House pressure on Hanoi to do more to clear the backlog of deportation orders for Vietnamese nationals convicted of felony crimes in the U.S.
When Vietnam’s Prime Minister Nguyen Xuan Phuc led a delegation of top leaders to Washington in late May, the issue was twice raised by the administration, both at the White House directly and in a separate meeting with then-Secretary of Homeland Security John Kelly.
Tin Thanh Nguyen, a Charlotte, North Carolina, immigration attorney now representing the 31-year-old deportee, Chuh A, said he knew of no prior instance in which a Montagnard refugee had been returned to Vietnam.
“We have never heard of the Vietnamese government issuing the travel documents, ever,” Nguyen said.
But weeks after the May 31 White House meeting, the required papers had arrived from Vietnam, according to a U.S. government court filing on June 22. And a prompt departure date was set for July 10, despite frantic requests for a second look at the merits of the removal.
Hired late in the process, Nguyen filed a detailed brief July 6 with U.S. Immigration and Customs Enforcement, raising alarm bells about Chuh’s Montagnard roots. But it was summarily rejected — so quickly, in fact, that Nguyen said he learned of the outcome only when Chuh’s wife called to say her husband was already on the plane.
ICE’s written notice rejecting the stay arrived days later, postmarked July 14. By then Chuh had already landed in Ho Chi Minh City, endured a costly cash transaction with customs over his travel papers and made his way to his old village in Kon Tum province.
The case captures all the twists and turns in the U.S. immigration system, compounded by pressure from the White House for quick results. No one emerges looking all good or all bad, but the outcome shows a remarkable blindness to history.
Nothing reveals this better, perhaps, than the exchanges between judge and defendant during a brief immigration court proceeding in June 2016, when Chuh was first ordered deported.
At that time, Chuh was being held at an ICE detention facility in Irwin County, Georgia. He had completed a state prison term for a first-time felony conviction in North Carolina related to trafficking in the synthetic drug MDMA, commonly called “ecstasy.” He remained without legal counsel and had to speak back-and forth by video conference with U.S. Immigration Court Judge William A. Cassidy of Atlanta, about 180 miles away.
POLITICO obtained a digital audiotape of the proceeding from the Justice Department under the Freedom of Information Act. The entire hearing ran just 5 minutes, 2 seconds, and the two men, Cassidy and Chuh, might have been ships passing in the night.
Chuh told Cassidy that he feared torture if he were sent back to Vietnam. But following the misguided advice of fellow detainees, he hurt his own cause by rejecting the judge’s offers to give him more time to find an attorney and seek protection.
On the other side, Cassidy, a former prosecutor, did not probe why Chuh feared torture. In fact, the judge showed no sign of knowing he was dealing with a Montagnard defendant and not the typical Vietnamese national.
Time and again, Cassidy incorrectly addressed Chuh as “A. Chuh” — not realizing that the A is Chuh’s single-letter last name and a telltale sign of his Montagnard heritage. The process was so rushed that Cassidy inadvertently told Chuh “Buenos dias” before correcting himself at the end.
Most striking, the word Montagnard is never heard in the entire tape. Its origins are French, a remnant of Vietnam’s colonial past and meaning, roughly, “people of the mountain.”
Over the years, the Montagnard label has been applied broadly to several indigenous ethnic groups concentrated in the Central Highlands and with their own distinct languages and customs. They share a hunger for greater autonomy in Vietnam and have been willing to side with outsiders, like the French and later Americans, to try to get it. At the same time, Vietnam’s dominant ethnic Kinh population has long treated the hill tribes as second-class citizens. Regardless of who has ruled Vietnam, the record is often one of suspicion and mistreatment toward the Montagnards.
The Montagnards’ strategic location in the Highlands, however, has long made them an asset in times of war. And beginning early in the 1960s, the Central Intelligence Agency and Green Berets recruited tribesmen to collect intelligence and disrupt enemy supply lines.
Chuh’s 71-year-old father, Tony Ngiu, assisted in this U.S. effort, but paid dearly later when he was sentenced to nine years in reeducation camps and hard labor by the victorious North. He was able to come to the U.S. in 1998 with much of his family, including Chuh, then a boy of about 13.
Like many Montagnards, he settled in North Carolina, which is also home to military installations used by the Green Berets, more formally known as U.S. Army Special Forces. But because Chuh was 18 by the time his father became a full citizen, he did not derive automatic citizenship himself.
“I am very, very sad,” Ngiu said. “I want them to send my son home so he can take care of his children.”
There are four children ages 5 through 12, and the burden falls most on Chuh’s common-law wife, Rex Ny. Like her husband, she is also of Montagnard heritage. She works as a manicurist in the Raleigh area while trying to pursue training as a dental hygienist. Chuh’s brother, Gim A., has stepped in to try to make ends meet, and, unlike her husband, Rex has the protection of having become a full U.S. citizen.
“It’s paycheck to paycheck,” Rex Ny said. “I pray to God every night that there is some way he can come home to help me.”
As deputy Asia division director for Human Rights Watch, Phil Robertson continues to monitor events inside Vietnam. “Disastrous” was his immediate reaction upon being told of Chuh’s deportation.
Robertson said the Montagnards are still subject to land grabs and political harassment from security forces in Vietnam who still view them as a “Fifth Column” of sorts.
“They are basically cut off,” Robertson said. “We have seen cases of state enterprises connected with the government and also the department of defense in Vietnam seizing Montagnard lands for plantation agriculture, and when the people resist, they are called reactionaries.”
“The house churches that the Montagnards operate, both the Protestant and Catholic versions, are not registered with the authorities, so that’s strike one. And they [government security organs] see that as also a form of political organizing. So the entire community remains under a high degree of suspicion by the Vietnam authorities.”
As a young man, Trump sidestepped the draft and military service during the Vietnam War. But the immigration issue is central to his presidency, and he hasn’t shied from pressing Hanoi on the need to accept its nationals when deported by the U.S.
Some of this is surely driven by the numbers. After the record level of deportations under former President Barack Obama, recent reports show that Trump is facing challenges in trying to outdo his predecessor. One option is to lower the threshold for crimes that merit deportation. And when Congress returns to deal with fiscal 2018 appropriations bills this fall, some expect the big make-or-break issue could be the tradeoff between new money Trump wants for his immigration agenda and the discretionary dollars Democrats covet for other domestic programs.
Officials at the Vietnamese Embassy in Washington declined to comment, given Hanoi’s negotiations with Washington over how to proceed. But the Vietnamese were surprised by the intensity of the pressure from the administration in May. And there is concern that Vietnam is being held accountable for nationals who came to the U.S. before postwar relations were normalized in 1995.
By its own calculations, ICE currently ranks Vietnam as third, behind China and Cuba, among countries it lists as “recalcitrants” — meaning their governments fail to issue the necessary travel papers or passports needed to enable ICE’s Enforcement and Removal Operations arm to finally execute a deportation order.
Thus far, the administration has not reduced the number of visas available to Vietnam for travel in the U.S. But this remains one leverage point that would be of concern to Hanoi.
The Department of Homeland Security confirmed that Kelly, who has since become White House chief of staff, met with Vietnam’s public security minister, To Lam, on the margins of the prime minister’s visit to Washington.
“The Secretary and ICE acting director Tom Homan did discuss removals in depth,” a spokesman said. “Specifically, the need for Vietnam to develop and commit to a process whereby ERO-requested travel documents are issued and Vietnamese nationals are removed within 30 days of document request.”
Kelly was not among the Cabinet secretaries who joined Trump at the White House with the prime minister. But Stephen Miller, a senior policy adviser to Trump and lead person on immigration issues, raised the “recalcitrant” issue directly in the presence of Phuc, according to people familiar with the discussions.
When POLITICO asked about Miller’s role and who else participated in the discussions with Phuc, the White House press office said only, “We don’t comment on private meetings.”
ICE and DHS press officers were more forthcoming, and they make the argument that it is untenable for thousands of foreign nationals, convicted of felony crimes, to remain in the U.S. simply because their native countries fail to provide the required paperwork.
ICE’s authority to detain migrants in these circumstances is limited by past Supreme Court rulings. Individuals may not be detained beyond six months if there is “no significant likelihood of removal in the reasonably foreseeable future,” said one official describing the current government rules.
In Vietnam’s case, in recent years, it has helped facilitate an annual average of almost 40 deportations from the U.S. But ICE said the time consumed runs over five months on average, nothing close to ICE’s 30-day goal. Altogether, ICE estimates there are about 8,500 removal orders outstanding for Vietnamese nationals, but again, this total does not appear to make a distinction between those who came before or after 1995,
Chuh’s misfortune was to be caught in a major policy shift.
ICE held him for close to 13 months, not the six months customary under the Obama administration. And without the resources to secure a lawyer, he allowed himself to be convinced by fellow detainees who assured him that he would never be deported to Vietnam because of the impasse over the required travel papers and his Montagnard history.
“When I went on the [immigration] court date, I was so confused,” he said in a telephone interview from his village. “All I could think was go ahead and sign the deportation because they are going to release me in six months.”
By his account, it was a very different picture when ICE took him to the plane in Atlanta, bound for Vietnam.
“I told them, ‘You know I cannot get on the plane. I fear for my life to go back to my country,’” Chuh said. “They were grabbing and dragging me out on the ramp. It was U.S. people. … There was no Vietnamese counselor or anyone to talk to me.”
It’s not clear too how prepared Vietnam itself was for his arrival back. From Chuh’s first encounter with customs, he appears to be in some legal limbo. At one level he has dropped off the radar by going back to his village, where he has family and a brother whom he can help farm rice in the Highlands. But he is without the required paperwork and records, he said, to get a resident card, a necessity if he is to be able to apply for a job.
“I cry every night,” he said of the calls home.
“The president has publicly prioritized the removal from the United States of criminal aliens,” said a spokesman for DHS. “DHS is sensitive to our legal obligations to protect persons we encounter who have a credible fear of persecution, and during the removal process there are multiple opportunities for someone to make such a claim.”
From the department’s viewpoint, the spokesman said Chuh’s failure to pursue such a claim in the deportation hearing before Cassidy remains decisive.
Defense attorney Nguyen disagrees. He said he will seek to reopen the June 2, 2016, hearing on the grounds that Chuh didn’t comprehend the ramifications of agreeing to the removal order.
“Because he didn’t really understand his decision to take that order, I really think that he never really had his day in court to file for protection,” Nguyen said. “I’m preparing to file a motion to reopen before Judge Cassidy in hopes of giving that opportunity to seek protection.”
Having reviewed the same audiotape recording of the exchanges between Cassidy and Chuh, Nguyen said his first stop would be to ask the judge himself to reopen the case on his own sua sponte authority.
“What a compelling case he had for protection,” Nguyen said.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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