Vietnamese Detainees: Habeas Corpus Petition and Complaint

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1 PHI U. NGUYEN (GA BAR NO. 578019)
(Pro Hac Vice to be filed)
2 ASIAN AMERICANS ADVANCING JUSTICE
-ATLANTA
3 6040 Unity Dr., Suite E
Norcross, Georgia 30071
4 Telephone: (770) 818-6147
Fax: (404) 890-5690
5 Email: pnguyen@advancingjustice-atlanta.org

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6 LABONI HOQ (SBN 224140)
CHRISTOPHER LAPINIG (SBN 802525)
7 ASIAN AMERICANS ADVANCING JUSTICE a LA
1145 Wilshire Blvd., 2nd Floor
8 Los Angeles, CA 90017
Telephone: (213) 977-7500
9 Fax: (213) 977-7595
Email: lhoq@advancingjustice-la.org
10 Email: clapinig@advancingjustice-la.org
11 Additional Counsel Listed On Next Page
12 Attorneys for Petitioners
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

15 HOANG TRINH, VU HA, LONG
and NGOC HOANG, on
16 NGUYEN,
behalf of themselves and all of those
17 similarly situated,
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v.

Petitioners,

Case No. 8:18-cv-316
HABEAS CORPUS CLASS
ACTION PETITION AND CLASS
ACTION COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF

19 THOMAS D. HOMAN, Deputy
and Senior Official Performing
20 Director
Duties of the Director, United States
and Customs Enforcement;
21 Immigration
KIRSTJEN M. NIELSEN, Secretary,
States Department of Homeland
22 United
Security; JEFFERSON B. SESSIONS
United States Attorney General;
23 III,
DAVID MARIN, Field Office Director,
Angeles Field Office, United States
24 Los
Immigration and Customs Enforcement;
HUTCHENS, Sheriff,
25 SANDRA
Orange County, Calif.; and DOE 1,
Adelanto ICE Processing
26 Warden,
Center,
Respondents.
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1 JINGNI (JENNY) ZHAO (SBN 284684)
ANOOP PRASAD (SBN 250681)
2 KEVIN CHUN HOI LO (SBN 278908)
MELANIE CHUN-YU KIM (SBN 292588)
3 WINIFRED KAO (SBN 241473)
ASIAN AMERICANS ADVANCING JUSTICE a
4 ASIAN LAW CAUCUS
55 Columbus Avenue
5 San Francisco, CA 94111
Telephone: (415) 896-1701
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Email: jennyz@advancingjustice-alc.org
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TUAN V. UONG (SBN 272447)
8 FARAH TABIBKHOEI (SBN 266312)
CHRISTOPHER M. BUTLER (SBN 318219)
9 PATIL T. DERDERIAN (SBN 316549)
REED SMITH, LLP
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13 Email: pderderian@reedsmith.com
14 JESSE A. DAVIS III (GA BAR NO. 140978)
(Pro Hac Vice to be filed)
15 DAVIS ADAMS, LLC
317 W. Hill St., Suite 201
16 Decatur, Georgia 30030
Telephone: (404) 373-8466
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Email: jess.davis@davis-adams.com
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INTRODUCTION

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1.

This class action habeas petition and complaint for declaratory and

3 injunctive relief is brought on behalf of Petitioners, who fled war-torn Vietnam, were
4 accepted by the United States as refugees before July 12, 1995 and have resided in
5 the United States since they were young children or teenagers. As a result of abrupt
6 and unlawful actions by Respondents, Petitioners currently face unwarranted and
7 indefinite immigration detention.
2.
Petitioners became lawful permanent residents of this country many
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9 years ago but, based on criminal convictions, lost their green cards and were ordered
10 removed from the United States. Although Petitioners have final orders of removal,
11 they cannot be repatriated under the existing repatriation agreement between the
12 United States and Vietnam. See Agreement Between the Government of the United
13 States and the Government of the Socialist Republic of Vietnam on the Acceptance
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14 of the Return of Vietnamese Citizens. The agreement does not allow for the
15 repatriation of Vietnamese immigrants who came to the United States before July 12,
16 1995 (apre-1995 Vietnamese immigrantsa), a population that is largely comprised of
17 refugees who fled Vietnam after the war to escape persecution under the new
18 communist regime.
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3.

United States Immigration and Customs Enforcement (aICEa) has had a

20 longstanding practice of releasing pre-1995 Vietnamese immigrants with final orders
21 of removal due to legal constraints on their detention authority. Recognizing that
22 removal of pre-1995 Vietnamese immigrants are anot subject to return to Vietnama
23 under the repatriation agreement, ICE has typically released these immigrants on
24 orders of supervision within 90 days of their removal orders becoming final. The
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A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A
A
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26 A This agreement can be found on the U.S. Department of Stateas website. See
Attachment A (Agreement Concerning the Acceptance of the Return of Vietnamese
27 Citizens, U.S.- NAM., Jan. 22, 2008, 08 a 43, https://www.state.
gov/documents/organization/108921.pdf.)A
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repatriation agreement has thus given thousands of pre-1995 Vietnamese immigrants
the opportunity to return to their families and communities to rebuild their lives.
4.

In 2017, ICE abruptly departed from past enforcement practices

pertaining to pre-1995 Vietnamese immigrants with final orders of removal. ICE
began subjecting pre-1995 Vietnamese immigrants to much longer periods of postremoval order detention, in some cases as long as eleven months. ICE also began redetaining without notice pre-1995 Vietnamese immigrants all across the United
States who had been living peaceably in their communities on orders of supervision
for years or decades.
5.

ICEas enforcement tactics have sown fear in Vietnamese refugee

communities around the country. Immigrants from other countries that have also
historically refused to accept immigrants for repatriation, including Cambodia,
Somalia, and Iraq, are similarly experiencing indiscriminate ICE arrests, which are
the subjects of pending legal actions as well.

See, e.g., Nak Kim Chhoeun, et al. v.

David Marin, et al., United States District Court, Central District of California, Case
No. 8:17-cv-01898-CJC (GJSx).
6.

At the time of this filing, Petitionersa counsel are aware of

approximately 40 pre-1995 Vietnamese immigrants with final orders of removal
across the country who are beyond 90 days of post-removal order detention. The
total number of similarly situated individuals is likely much larger. Furthermore, on
information and belief, ICE intends to continue to detain pre-1995 Vietnamese
immigrants with final orders of removal. The number of Vietnamese with final
orders of removal who are at risk of future detention is between 8,000 and 10,000.
Based on ICE estimates from 2008, an overwhelming percentage of these individuals
arrived in the United States before July 12, 1995.
7.

ICE has undertaken its detention campaign without any evidence that

Vietnam will accept pre-1995 Vietnamese immigrants that have been or will be

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detained. The repatriation agreement has not been rescinded or modified by either
country. Given Vietnamas longstanding policy of categorically denying repatriation
to pre-1995 Vietnamese immigrants, memorialized in the existing and valid
repatriation agreement, detention of Petitioners without an individualized and
specific showing that Vietnam actually intends to accept them is unlawful.

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detention past 90 days, and often past 180 days, without providing them any
meaningful custody review to determine whether continued detention is warranted
because they pose a danger or flight risk. ICE cannot lawfully detain Petitioners
absent an individualized showing of danger or flight risk before a neutral decision
maker, especially as their detention becomes more prolonged.

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JURISDICTION

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9.

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This Court has subject matter jurisdiction under 28 U.S.C. ASS 2241

(habeas corpus), the Suspension Clause of Article I of the United States Constitution,
28 U.S.C. ASS 1331 (federal question), 28 U.S.C. ASS 1361 (mandamus), and 5 U.S.C. ASSASS
701 et seq. (Administrative Procedures Act). The Court may also grant relief under
28 U.S.C. ASSASS 2201-02 (Declaratory Judgment Act) and 28 U.S.C. ASS 1651 (All Writs
Act).

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Additionally, ICE has kept pre-1995 Vietnamese immigrants in

VENUE
10.

Venue is proper in the Central District of California under 28 U.S.C. ASS

1391(e) because Respondents are federal officers sued in their official capacity;
Respondents Marin and Hutchens are based in this district; Petitioners Hoang Trinh
and Vu Ha and numerous class members reside in this district; Petitioners Hoang
Trinh and Vu Ha and numerous class members are currently detained in this district;
and a substantial part of the events or omissions giving rise to these claims occurred
in this district. Venue is also proper under 28 U.S.C. ASSASS 2241 et seq., as Respondents
exercise control over Petitioners. Armentero v. INS, 340 F.3d 1058, 1069-70 (9th Cir.

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2003), withdrawn on rehag, 382 F.3d 1153 (9th Cir. 2004) (explaining why
apracticality, efficiency, and the interests of justicea demand relaxation of immediate
custodian rule in habeas challenges to immigration detention); see also Roman v.
Ashcroft, 340 F.3d 314, 319 (6th Cir. 2003) (recognizing that while ICE Field Office
Director is generally the proper respondent for immigration habeas petitioners,
higher level ICE officials may be proper respondents in extraordinary
circumstances); Vasquez v. Reno, 233 F.3d 688, 696 (1st Cir. 2000).

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PARTIES
11.

Petitioner Hoang Trinh is a 41-year-old resident of Orange County,

California who legally entered the United States from Vietnam as a four-year-old
refugee in 1980. He subsequently adjusted his status to become a lawful permanent
resident. His parents, now married for more than 50 years, raised a large Catholic
familyaHoang and his six sistersathat centered around helping build a thriving
family business: a neighborhood bakery. Hoang later married and now has two
children, an 18-year-old daughter who attends California State University, Long
Beach, and a 13-year-old son. Hoangas wife, two children, parents, and six sisters are
all United States citizens. Hoang has no remaining family in Vietnam. In early 2015,
Hoang was arrested on a drug charge, for which he served one year in prison. After
allegedly being found in possession of a marijuana plant in 2017, Hoang was
incarcerated in Orange County before being transferred to ICE custody. He was
ordered removed from the United States on July 27, 2017 and has remained
incarcerated at the Theo Lacy Facility in Orange County for the past almost seven
months. Hoang has never been interviewed by the Vietnamese government regarding
repatriation to Vietnam.
12.

Petitioner Vu Ha is a 37-year-old resident of Orange County, California

who legally entered the United States from Vietnam as a 10-year-old refugee in
1990. He became a lawful permanent resident shortly after his arrival to the United

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States. His parents are United States citizens, as are his sister and his 13-year-old
daughter. An artist and avid runner, Vu has primarily worked at the nail salon his
mother owns. He was arrested three times as a young adult between the years 2000
and 2005, with the most serious offense being robbery. In 2017, Vu was arrested and
detained for failing to pay a citation for driving without a license. He was then
transported from a county jail to ICE custody in May 2017. He was ordered removed
from the United States on September 19, 2017 and has remained incarcerated at the
Adelanto ICE Processing Center in Adelanto, California for the past five months. Vu
has never been interviewed by the Vietnamese government regarding repatriation to
Vietnam.
13.

Petitioner Long Nguyen is 41-year-old resident of Charleston, South

Carolina, who legally entered the United States as an eleven-year-old refugee in
1987. He became a lawful permanent resident the following year. He is now married
to a United States citizen and has a two-year-old daughter and three stepdaughters
who are all United States citizens. His parents also reside in the United States as
lawful permanent residents. The Nguyen family is active in their local Catholic
church, and Long and his wife have worked together for many years in the nail salon
he manages. Longas only felony offense involved a nonviolent drug charge in 2006,
in Kansas City, Missouri. In September or October 2011, ICE detained Long upon
his reentry to the United States after traveling abroad. He was ordered to be removed
from the United States on April 18, 2012 and subsequently released on an order of
supervision under which he consistently and reliably reported to ICE. Then, on
October 19, 2017, Long was pulled over while driving to work and re-detained by
ICE officers. He has been held at the Stewart Detention Center in Lumpkin, Georgia
since then, for the past four months.
14.

Petitioner Ngoc Hoang is a 44-year-old resident of Gwinnett County,

Georgia who legally entered the United States in 1990 as a refugee. Both of his

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parents and his only sibling are United States citizens. Ngoc was married to a United
States citizen with whom he has four children, ages 16, 14, 13 and 11, all of whom
are United States citizens. All of his children now live with Ngoc and his second
wife; he is the primary provider for his family, working as a nail salon technician. He
has no family remaining in Vietnam. In 1994, Ngoc pleaded guilty to check fraud in
Washington, and in 2010, he was placed on probation in Georgia for simple assault
and simple battery. He was ordered removed from the United States on
December 12, 2012 and subsequently released on an order of supervision
approximately two months later. Over the next almost five years, Ngoc consistently
complied with the requirements of his order of supervision. On the morning of
November 6, 2017, Ngoc was suddenly re-arrested by ICE officers at his home and
has been held at the Stewart Detention Center in Lumpkin, Georgia or the Irwin
County Detention Center in Ocilla, Georgia in ICE custody for the past almost four
months. Ngoc has never been interviewed by the Vietnamese government regarding
repatriation to Vietnam and has not been given a 90-day custody review by ICE.
15.

Respondent Thomas D. Homan is the Deputy Director and Senior

Official Performing Duties of the Director of ICE. As the head of ICE, an agency
within the United States Department of Homeland Security that detains and removes
noncitizens, Respondent Homan is a legal custodian of Petitioners and all class
members. Respondent Homan is an appropriate respondent for this habeas action
because, on information and belief, decisions regarding the detention of pre-1995
Vietnamese immigrants are being made at ICE Headquarters and because Petitioners
and class members are often transferred between different regions of the country.
16.

Respondent Kirstjen M. Nielsen is the Secretary of the United States

Department of Homeland Security. She is responsible for the implementation and
enforcement of the immigration laws and oversees ICE. Respondent Nielsen has
ultimate custodial authority over Petitioners and all class members.

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Respondent Jefferson B. Sessions III is the Attorney General of the

United States. As the head of the United States Department of Justice, which
oversees the immigration courts, Respondent Sessions shares responsibility for
enforcement of the immigration laws with Respondents Kirstjen M. Nielsen and
Thomas D. Homan.
18.

Respondent David Marin is the Field Office Director for ICEas Los

Angeles, California, Field Office, which has detention authority over non-citizens in
ICE custody at Adelanto ICE Processing Center in Adelanto, California, including
Petitioner Vu Ha, as well as detention authority over non-citizens in ICE custody at
ICEas Theo Lacy Facility in Orange, California, including Petitioner Hoang Trinh.
19.

Respondent Sandra Hutchens is the Sheriff of Orange County,

California, which holds a contract with ICE to detain noncitizens. Respondent
Hutchens is responsible for the operation of the Theo Lacy Facility in Orange,
California, where Petitioner Hoang Trinh is detained.
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Respondent Doe 1 is the warden at the Adelanto ICE Processing Center,

a private detention facility owned by The GEO Group, Inc., which holds a contract
with ICE to detain noncitizens. Respondent Doe 1 is responsible for the operation of
the Adelanto ICE Processing Center in Adelanto, California, where Petitioner Vu Ha
is detained. On information and belief, the identity of the warden is not public
information, and therefore, Petitioner intends to amend the complaint to add this
respondent at a later time.
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All Respondents are sued in their official capacity.
LEGAL BACKGROUND

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Detention

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Following a final order of removal, ICE is directed by statute to detain

27 an individual for 90 days in order to effectuate removal. 8 U.S.C. ASS 1231(a)(2). This
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90-day period, also known as athe removal period,a generally commences as soon as
a removal order becomes administratively final. ASS 1231(a)(1)(A), ASS 1231(a)(1)(B).
23.

If ICE fails to remove an individual during the 90-day removal period,

the law requires ICE to release the individual under conditions of supervision,
including periodic reporting. ASS 1231(a)(3) (aIf the alien . . . is not removed within the
removal

period,

the

alien,

pending

removal,

shall

be

subject

to

supervision.a). Limited exceptions to this rule exist. Specifically, ICE amaya detain
an individual beyond 90 days if the individual was ordered removed on criminal
grounds or is determined to pose a danger or flight risk. ASS 1231(a)(6). However,
ICEas authority to detain an individual beyond the removal period under such
circumstances is not boundless. Rather, it is constrained by the constitutional
requirement that detention abear a reasonable relationship to the purpose for which
the individual [was] committed.a Zadvydas v. Davis, 533 U.S. 678, 690 (2001)
(citations omitted). Because the principal purpose of the post-final-order detention
statute is to effectuate removal, detention bears no reasonable relation to its purpose
if removal cannot be effectuated. Id. at 697.
24.

The United States Supreme Court has accordingly construed Section

1231(a)(6) as authorizing post-final order detention only for a aperiod reasonably
necessary to secure removal,a a period that the Court determined to be presumptively
six months. Id. at 699-701. After this six month period, if a detainee provides agood
reasona to believe that his or her removal is not significantly likely in the reasonably
foreseeable future, athe Government must respond with evidence sufficient to rebut
that showing.a Id. at 701. If the government cannot do so, the individual must be
released.
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However, detainees are entitled to release even before six months of

detention, as long as removal is not reasonably foreseeable. See 8 C.F.R. ASS
241.13(b)(1) (authorizing release after 90 days where removal not reasonably

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foreseeable). Moreover, as the period of post-final-order detention grows, what
counts as areasonably foreseeablea must conversely shrink. Zadvydas at 701.
26.

Even where detention meets the Zadvydas standard for reasonable

foreseeability, detention violates the Due Process Clause unless it is areasonably
relateda to the governmentas purpose, which is to prevent danger or flight risk. See
Zadvydas, 533 U.S. at 700 (a[I]f removal is reasonably foreseeable, the habeas court
should consider the risk of the alienas committing further crimes as a factor
potentially justifying confinement within that reasonable removal perioda) (emphasis
added); id. at 699 (purpose of detention is aassuring the alienas presence at the
moment of removala); id. at 690-91 (discussing twin justifications of detention as
preventing flight and protecting the community). Thus, due process requires a
meaningful determination that Petitioners pose a danger or flight risk that warrant
post-final-order detention, regardless of whether their removal can be effectuated
within a reasonable period of time.
27.

The governmentas own regulations contemplate this requirement. They

dictate that even after ICE determines that removal is reasonably foreseeableaand
that detention therefore does not per se exceed statutory authorityathe government
must still determine whether continued detention is warranted based on flight risk or
danger. See 8 C.F.R. ASS 241.13(g)(2) (providing that where removal is reasonably
foreseeable, adetention will continue to be governed under the established standardsa
in 8 C.F.R. ASS 241.4).
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The regulations, at 8 C.F.R. ASS 241.4, set forth the custody review

process that existed even before the Supreme Courtas decision in Zadvydas. This
mandated process, known as the post-order custody review, requires ICE to conduct
a90-day custody reviewsa prior to expiration of the 90-day removal period and to
consider release of individuals who pose no danger or flight risk, 8 C.F.R. ASS
241.4(e)-(f). Among the factors to be considered in these custody reviews are aties to

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the United States such as the number of close relatives residing here lawfullya;
whether the noncitizen ais a significant flight riska; and aany other information that
is probative of whethera the noncitizen is likely to aadjust to life in a community,a
aengage in future acts of violence,a aengage in future criminal activity,a pose a
danger to themselves or others, or aviolate the conditions of his or her release from
immigration custody pending removal from the United States.a Id.
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Individuals with final orders who are released after a post-order custody

review are subject to orders of supervision. 8 C.F.R. ASS 241.4(j). After an individual
has been released on an order of supervision, ICE cannot revoke such an order
without cause or adequate legal process.

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FACTS

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Vietnamas Repatriation Agreement with the United States

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30.

In 2008, after ten years of negotiation, Vietnam and the United States

15 executed a repatriation agreement to govern the repatriation of certain Vietnamese
16 immigrants with final orders of removal to Vietnam. Before this agreement was
17 negotiated, Vietnam refused to repatriate the overwhelming majority of Vietnamese
18 immigrants ordered removed from the United States.
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Vietnam and the United States stipulated that the repatriation agreement

20 would be valid for five years from the date of its execution and then automatically
21 extended for successive three-year terms thereafter absent at least six months written
22 notice of an intent to terminate from one government to the other. See Agreement,
23 Article 6, Entry into Force and Duration.
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32.

Upon information and belief, the repatriation agreement has not been

25 terminated or modified by either Vietnam or the United States.
33. The repatriation agreement does not permit the repatriation of
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28 expressly stipulates that aVietnamese citizens are not subject to return to Vietnam
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under this Agreement if they arrived in the United States before July 12, 1995.a See
Agreement, Article 2: Removable Persons and Conditions of Acceptance. The
categorical exemption of pre-1995 Vietnamese immigrants from repatriation reflects
humanitarian considerations related to the United Statesa role in the Vietnam War,
the subsequent resettlement of Vietnamese refugees in America, and the continuing
tension between the Vietnamese government and the Vietnamese refugees who were
forced to flee their homes to avoid profound hardship and persecution after the war.
34.

The end of the Vietnam War caused hundreds of thousands of South

Vietnamese refugees to flee to the United States by boat or by air to escape political
persecution and death. Other Vietnamese immigrants who resettled in America
before July 12, 1995 were accepted to the United States to reunite with their loved
ones or for other humanitarian reasons. The Vietnamese refugees who fled to the
United States in the 20 years following the Vietnam War included those with close
ties to the United States military or South Vietnamese government who feared for
their lives under the new communist government and the hundreds of thousands of
aBoat Peoplea who poured out of Vietnam in rickety, wooden boats, desperate to
escape communist re-education camps and other forms of political persecution.
35.

Abandoned children of American soldiers and Vietnamese womena

known as aAmerasiansa and pejoratively referred to as the adust of lifea in
Vietnamawere also among the waves of Vietnamese immigrants who resettled in
the United States before July 12, 1995. In addition to growing up fatherless,
Amerasians were roundly shunned by Vietnamese society for being mixed race and
born out of wedlock and in many cases rejected by their own mothers. These
punishing circumstances set Amerasians on a trajectory of homelessness and abject
poverty. With physical features that betrayed them as the children of American
soldiers, Amerasians became even more vulnerable to mistreatment after communist
takeover of Vietnam in 1975, as they carried the faces of those who had fought

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against the North Vietnamese. After 1975, many were imprisoned in labor or
reeducation camps. Recognizing the extreme persecution faced by Amerasians and
acknowledging its responsibility towards these half-American children, the United
States in the 1980s enacted laws that gave thousands of Vietnamese Amerasians the
opportunity to leave behind a country that never accepted them in order start anew in
the homeland of their fathers.
36.

These early Vietnamese refugees to America lacked resourcesaformal

education, English-language proficiency, a supportive ethnic community, or mental
health services to help cope with war-related traumaato ease their transition to an
unfamiliar country. In addition, ad hoc resettlement practices dispersed these
refugees, often pushing them into economically deteriorating, high-crime
neighborhoods with under-resourced schools. While many Vietnamese refugees beat
the odds stacked against them to pursue higher education, start successful small
businesses, and build families in their new homeland, some were convicted of crimes
that resulted in orders of removal.
37.

Vietnamas longstanding practice of refusing repatriation has for years

protected pre-1995 Vietnamese immigrants from being removed to the country they
fled to escape starvation, violence, and death. The exclusion of pre-1995 Vietnamese
immigrants from the repatriation agreement is central to maintaining human rights
protections for this population. According to the U.S. Department of Stateas 2016
Human Rights Report on Vietnam, the most significant human rights problems in
Vietnam are severe government restrictions of citizensa political rights.2 Most pre1995 Vietnamese immigrants are ex-citizens of South Vietnam, a country that ceased
to exist after North Vietnam prevailed in the war in April 1975, leaving hundreds of
thousands of South Vietnamese stateless. Many of those who were not immediately

A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A A
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27 U.S. Dept. of State, Vietnam 2016 Human Rights Report, 2016,
https://www.state.gov/documents/organization/265598.pdf.
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evacuated from Vietnam were incarcerated for months or years in re-education
prisons, where they endured political indoctrination and forced physical labor
because of their perceived threat and lack of loyalty to the new communist
government.
38.

The repatriation agreement has also profoundly impacted the way pre-

1995 Vietnamese immigrants have handled their removal proceedings. Many of
these immigrants, who faced the possibility of years in detention while litigating
their removal cases, at great financial cost which most could not afford, chose
instead to forego the pursuit of meritorious defenses based on the reasonable
expectation that they would not be deported to Vietnam.
39.

Although the repatriation agreement officially opened the door for

repatriation of Vietnamese immigrants who arrived to the United States on or after
July 12, 1995, Vietnam continues to accept only a very limited number of persons
for repatriation each year and still regularly refuses to issue travel documents. Based
on publicly available information from ICE and from the Executive Office for
Immigration Review, from 2008 to 2016, Vietnam only accepted an average of 13
percent of individuals ordered removed to Vietnam each year. On information and
belief, a negligible percentage of the removals to Vietnam have been removals of
pre-1995 Vietnamese immigrants, consistent with the repatriation agreement.
40.

Because of the exclusion of pre-1995 immigrants from the repatriation

agreement and the overall lack of cooperation from the Vietnamese government, the
United States government has been unable to carry out most orders of removal to
Vietnam. Consequently, ICE has for years routinely released pre-1995 Vietnamese
immigrants with final orders of removal from immigration custody upon or even
before expiration of the 90-day removal period. Thousands of Vietnamese returned
to their families, their jobs, and their communities and built productive, peaceful
lives following completion of their removal proceedings.

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Currently, between 8,000 and 10,000 Vietnamese Americans are living

in the United States with final orders of removal. According to ICE estimates, 6,200
of the 7,700 Vietnamese who had final orders of removal in 2008 came to the United
States before 1995, indicating that the vast majority of the 8,000 to 10,000
Vietnamese with final orders of removal today are pre-1995 Vietnamese immigrants.

6

Unlawful Detention in Violation of the Repatriation Agreement

7
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42.

Signed in January 2017, Executive Order 13768 announced a massive

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9 expansion of immigration enforcement. Exec. Order No. 13,768, 82 Fed. Reg. 8799
10 (Jan. 25, 2017), The order identified arecalcitranta countries that refuse repatriation
11 as a problem area and directed the Secretary of Homeland Security and the Secretary
12 of State to implement sanctions on these countries. Id. at ASS 12.
13

43.

ICE soon after began conducting widespread arrests of immigrants from

14 arecalcitranta countries, including Iraq, Cambodia, and Somalia, without requisite
15 evidence that these countries would repatriate the individuals arrested, often
16 followed by prolonged detention without due consideration to whether detention was
17 necessary to effectuate their removal. Immigrants from these countries filed class
18 action lawsuits around the country challenging ICEas unlawful denial of due process
19 to their communities.
20

44.

ICE likewise aggressively stepped up enforcement against the

21 Vietnamese community in 2017. It ended its practice of releasing pre-1995
22 Vietnamese immigrants from detention promptly following their orders of removal.
23 Instead, deportation officers began holding pre-1995 Vietnamese immigrants for
24 longer than 90 days, and often longer than 180 days, citing a directive from ICE
25 Headquarters.
45. In March 2017, ICE also began re-arresting pre-1995 Vietnamese
26
27 immigrants with final orders of removal whom it had previously released. Many
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were transported to Krome Detention Center in Miami, Florida to be interviewed by
the Vietnamese Consulate between March 20 and 31, 2017.
46.

On September 21, 2017, the United States submitted 95 cases of

Vietnamese immigrants with final orders of removal to the Vietnamese government
to consider for repatriation.
47.

In October 2017, ICE again carried out mass arrests of Vietnamese

immigrants with final orders of removal who had returned to their communities on
orders of supervisionaincluding pre-1995 Vietnamese immigrants. Arrests occurred
in several states across the country, including Georgia, Pennsylvania, Texas,
Colorado, and California. Many of the individuals arrested were transported to
Stewart Detention Center in Lumpkin, Georgia to be interviewed by the Vietnamese
Consulate between the end of October and beginning of November, 2017.
Afterwards, they were transported to various detention centers for continued
detention.
48.

In defense of ICEas abrupt change in policy and violation of the

repatriation agreement, the United States government claims that Vietnam is now
awilling to considera repatriation of Vietnamese who came to the United States
before July 12, 1995. However, the government has not substantiated this claim with
any official document memorializing Vietnamas alleged change in policy, and the
repatriation agreement remains in effect. Further, the Vietnamese governmentas
conduct does not signal any meaningful departure from its categorical refusal to
repatriate pre-1995 Vietnamese immigrants, despite continued pressure from the
United States.
49.

On information and belief, the Vietnamese government has only issued

travel documents to seven pre-1995 Vietnamese immigrants. Moreover, on
information and belief, Vietnam will not accept the deportation of any pre-1995
individuals without an interview. Some Petitioners and class members have never

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been interviewed by the Vietnamese Consulate and are therefore not being
considered for repatriation, yet remain in ICE custody.
50.

During interviews conducted by the Consulate, Vietnamese officials

questioned individuals about whether they have any family living in Vietnam who
can support them if deported; whether they have any family living in the United
States who will be impacted if deported; and whether they are willing to accept their
deportation. On information and belief, Vietnam is extremely reluctant to issue travel
documents to individuals like Petitioners who have no family in Vietnam; whose
families in the United States will suffer hardship as a result of their deportation;
and/or who do not wish to return to Vietnam. In addition to Petitioners, the pre-1995
Vietnamese immigrants detained by ICE include at least four Amerasians whom
Vietnam is highly unlikely to repatriate.
51.

Despite the United States governmentas vague representations, the

Vietnamese governmentas conduct does not indicate that it truly intends to repatriate
the hundreds of pre-1995 Vietnamese whom ICE is currently detaining or will likely
detain under its current detention campaign.
52.

ICE lacks any particularized evidence that Vietnam will accept

Petitionersa or class membersa repatriation. Despite this lack of proof that
Petitionersa and class membersa repatriation is significantly likely in the reasonably
foreseeable future, ICE has kept all Petitioners and class members past 90 days and
some past 180 days.
53.

Furthermore, Petitioners and class members are being detained without

an individualized hearing before a neutral decision maker to assess whether detention
is warranted due to danger or flight risk. This includes Petitioners Ngoc Hoang and
Long Nguyen and class members who for years consistently and reliably reported to
ICE as required under their orders of supervision.

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54.

custody reviews for Petitioners and other class members, they have been perfunctory,
resulting in boilerplate decisions that merely rubberstamp continued detention. Some
class members have been told by ICE employees that Vietnamese with final orders
of removal will continue to be detained until the Vietnamese government issues a
travel document, though some requests for travel documents have been pending
since late October or early November 2017 and others since March 2017. On
information and belief, the refusal to release any pre-1995 Vietnamese immigrants
after 90 days is driven by an ICE Headquarters policy being uniformly implemented
across the United States.
CLASS ALLEGATIONS

11
12

To the extent that ICE has been conducting any 90-day post-order

55.

Petitioners bring this action on behalf of themselves and all other

13 similarly situated persons pursuant to Federal Rules of Civil Procedure 23(a) and
14 23(b)(2), and as a representative habeas class action for similarly situated persons
15 pursuant to a procedure analogous to Rules 23(a) and 23(b)(2). See Ali v. Ashcroft,
16 346 F.3d 873, 889-91 (9th Cir. 2003) (holding that the district court did not exceed
17 its habeas jurisdiction in certifying a nationwide habeas class), withdrawn and
18 amended on other grounds on rehag, Ali v. Gonzales, 421 F.3d 795 (9th Cir. 2005);
19 see also Geraghty v. U.S. Parole Commission, 429 F. Supp. 737, 740 (M.D. Pa.
20 1977) (noting that aprocedures analogous to a class action have been fashioned in
21 habeas corpus actions where necessary and appropriatea).
56. Petitioners seek to represent the following classes: (1) all Vietnamese
22
23 nationals who arrived in the United States before July 12, 1995 and who have been
24 or will be detained by ICE for more than 90 days after receiving final orders of
25 removal (a90-Day Classa); and (2) all Vietnamese nationals who arrived in the
26 United States before July 12, 1995 and who have been or will be detained by ICE for
27 more than 180 days after receiving final orders of removal (a180-Day Classa).
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57.

Members of each proposed class are so numerous that joinder is

impracticable. Petitioners have identified at least 45 pre-1995 Vietnamese
immigrants with final orders of removal presently in ICE custody in just 20 of ICEas
111 detention facilities. At least 37 of the 45 have been detained for more than 90
days; 18 of those 37 have been detained for more than 180 days. The total numbers
of 90-Day Class members and 180-Day Class members are likely much higher.
Further, 8,000 to 10,000 Vietnamese immigrants in the United States currently have
final orders of removal. ICEas aggressive detention of these individuals as part of a
Headquarters-driven decision means the 90-day Class and 180-day Class will
continue to grow.
58.

Petitionersa claims are typical of the claims of the proposed classes. In

addition, Petitioners will fairly and adequately represent the interests of all members
of the proposed classes. Petitioners seek relief that is identical to the relief sought by
members of each class, and they have no interests that are adverse to other class
members. Petitioners have retained counsel who have experience in immigration law
and class action litigation and will adequately represent the interests of the classes.
59.

Multiple questions of law and fact are common to members of the

proposed classes, including:
a.

Whether the 90-Day Class members and 180-Day Class members have

shown good reason to believe that their removal is not reasonably foreseeable;
b.

Whether Respondents have sufficient evidence that the 90-Day Class

membersa and 180-Day Class membersa removal is reasonably foreseeable to justify
continued detention given that they are specifically excluded from repatriation under
the repatriation agreement; and
c.

Whether Respondents have afforded 90-Day Class members and 180-

Day Class members individualized determinations of the need for detention that
satisfy Section 1231 and due process.

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60.

Respondentas conduct and refusal to act apply generally to the 90-day

Class and 180-day Class, thereby making the final injunctive relief and declaratory
relief sought by the Petitioners appropriate with respect to the class as a whole.

4
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CLAIMS FOR RELIEF
Count One: Unlawful Detention Where Removal Is Not Reasonably Foreseeable

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63.

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Petitionersa and class membersa removal is not significantly likely to

occur in the reasonably foreseeable future because they are specifically excluded
from repatriation under the repatriation agreement.
64.

The 90-Day Class membersa Zadvydas claim is ripe because the six-

month period set forth in Zadvydas is a rebuttable presumption, not a rule. The
presumption is rebutted by a repatriation agreement that expressly excludes pre-1995
Vietnamese immigrants from repatriation, along with Vietnamas historical refusal to
accept them.
65.

Through the repatriation agreement and Vietnamas historical practice,

Petitioners and class members have made their initial showing under Zadvydas of
agood reason to believea that their removal is not reasonably foreseeable. Id. at 701.

22
23

Post-removal order detention violates Section 1231 where removal is

constitutional due process.

19
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Davis, 533 U.S. 678 (2001). Detention under these circumstances also violates

14
15

The foregoing allegations are realleged and incorporated herein.

not significantly likely to occur in the reasonably foreseeable future. Zadvydas v.

11
12

61.

66.
to

Petitioners and class members have shifted the burden to Respondents

produce

individualized

evidence

that

their

removal

is

reasonably

foreseeable. Respondents lack such evidence, yet continue to detain Petitioners and
class members in violation of Section 1231 and constitutional due process.
67.

Petitioners and class members are entitled under the law to immediate

release on orders of supervision.

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Count Two: Unlawful Detention Without
Determinations of Danger and Flight Risk

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68.

The foregoing allegations are realleged and incorporated herein.

69.

Even when removal is reasonably foreseeable, detention violates

Section 1231 and due process under the United States Constitution unless it is
reasonably related to the governmentas purposes of preventing flight and protecting
the community. Zadvydas, 533 U.S. at 690-91.
70.

Respondents are subjecting Petitioners and class members to months of

detention without any individualized determination that they pose a danger or flight
risk that would justify their detention.
71.

The only procedure the government has providedaadministrative post-

order custody reviewsais inadequate to satisfy the requirements of due
process. Moreover, the government is not meaningfully conducting these post-order
custody reviews in compliance with its own regulations but is merely
rubberstamping continued detention with respect to the Petitioners and class
members as a whole.
72.

Respondents may not continue to detain Petitioners and class members

without individualized determinations by impartial adjudicators of whether detention
is justified based on danger or flight risk.

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PRAYER FOR RELIEF
73.

WHEREFORE, Petitioner respectfully requests that the Court grant the

following relief:
a.

Assume jurisdiction over this matter;

b.

Certify this matter as a class action, name Petitioners Vu Ha, Long

Nguyen, and Ngoc Hoang as class representatives of the 90-Day Class, name
Petitioner Hoang Trinh as class representative of the 180-Day Class, and appoint
Petitionersa counsel as class counsel;
c.

Declare that Respondents have violated the rights of the class;

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d.

members for whom Respondents lack individualized evidence that removal is
significantly likely to occur in the reasonably foreseeable future;

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e.

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Order Respondents to release Petitioners and all class members from

detention absent an individualized determination by an impartial adjudicator that their
detention is justified based on danger or flight risk, which cannot be sufficiently
addressed by alternative conditions of release and/or supervision;

8
9

Order Respondents to release from detention Petitioners and all class

f.

Award Petitioners reasonable attorneysa fees and costs under the Equal

Access to Justice Act, 28 U.S.C. ASS 2412, and on any other basis justified under law;
and
g.

Grant any other and further relief as the Court deems just and proper.

12
13 Dated: February 22, 2018

Respectfully submitted,

14

/S/ Tuan V. Uong
Tuan V. Uong
Farah Tabibkhoei
Christopher M. Butler
Patil T. Derderian
REED SMITH, LLP

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/S/ Phi U. Nguyen
Phi U. Nguyen
ASIAN AMERICANS ADVANCING JUSTICE-ATLANTA

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/S/ Laboni Hoq
Laboni Hoq
Christopher Lapinig
ASIAN AMERICANS ADVANCING JUSTICE-LA

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A

A

A

A

/S/ Jingni Zhao
Jingni (Jenny) Zhao
Anoop Prasad
Kevin Chun Hoi Lo
Melanie Chun-Yu Kim
Winifred Kao
ASIAN AMERICANS ADVANCING JUSTICE-ASIAN LAW
CAUCUS

26

/S/ Jesse A. Davis III
Jesse A. Davis III
DAVIS ADAMS, LLC
Attorneys for Petitioners
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ATTACHMENT A

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08 a 43

AGREEMENT
BETWEEN
THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND
THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM
ON
THE ACCEPTANCE OF THE RETURN OF VIETNAMESE CITIZENS

The Government of the United States of America (hereinafter called
"the U.S. Government") and the Government of the Socialist Republic of
Vietnam (hereinafter called "the Vietnamese Government"),
With a wish of developing friendly relations between the two countries,
and to establish procedures for competent authorities of both countries on the
prompt and orderly acceptance of Vietnamese citizens who have been ordered
removed by the U.S. Government,
In order to establish common procedures for the relevant authorities
based on the legal principles of each country and the international
responsibility to accept the return of repatriated citizens; and to follow
recognized principles of international law, to allow for a case-by-case
determination of repatriation, and to recognize the right of the receiving
country to determine nationality,
Have agreed to the following:
Article 1
General Provisions

1. The U.S. Government will carry out the repatriation of Vietnamese
citizens who violated U.S. law in accordance with U.S. and international law
and the provisions of this Agreement. The repatriation should take into
account the humanitarian aspect, family unity and circumstances of each
person in each individual case.
2. The Vietnamese Government may consider the return of its citizens
who violated U.S. law based on the consideration of legal procedures and the

'/

Case 8:18-cv-00316 Document 1-1 Filed 02/22/18 Page 3 of 8 Page ID #:26

status and circumstances of each individual case. The subject individuals and
the acceptance procedure will be based on the terms of this Agreement.
3. Repatriation will be carried out in an orderly and safe way, and with
respect for the individual human dignity of the person repatriated. The U.S.
Government will allow Vietnamese citizens who have been ordered removed
a reasonable time to arrange their personal affairs before returning them to
Vietnam.
4. Persons repatriated under this Agreement have the right to transfer
their legal money and personal property to Vietnam.
5. The U.S. Government will pay for the cost of returning to Vietnam
persons repatriated under this Agreement, as provided in Article 5 and Annex
1. The U.S. Government will also pay for the cost of returning to the United
States any person who was mistakenly repatriated, in accordance with Article
3 of this Agreement.
Article 2
Removable Persons and Conditions of Acceptance

1. The Vietnamese Government will accept the return of Vietnamese
citizens in accordance with Article 1 and item 2 of Article 2 of this
Agreement, if upon investigation the individual meets the following
requirements:
(a) The individual is a citizen of Vietnam and is not a citizen of the
United States or of any other country;
(b) The individual previously resided in Vietnam and has no current
residence in a third country;
(c) The individual has violated U.S. laws and has been ordered by
competent authority removed from the United States; and
(d) If the individual has been convicted of a criminal offense (including
immigration violation), the person will have completed any imprisonment
before removal, and any reduction in sentence will have been ordered by
competent authority.
2. Vietnamese citizens are not subject to return to Vietnam under this
Agreement if they arrived in the United States before July 12, 1995, the date
on which diplomatic relations were re-established between the U.S.
A

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Government and the Vietnamese Government. The U.S. Government and the
Vietnamese Government maintain their respective legal positions relative to
Vietnamese citizens who departed Vietnam for the United States prior to that
date.
3. In the case of a citizen of Vietnam who immigrated to the United
States from a third country where that person had a permanent residence and
who has been ordered removed from the United States, the U.S. Government
will seek to return that person to the third country or consider allowing that
person to stay in the United States, before requesting removal to Vietnam.
4. In any case where the Vietnamese Government obtains information
relevant to the repatriation of an individual that was not previously considered
by the U.S. Government, the Vietnamese Government may request a
humanitarian reconsideration based on the specific circumstances of the
repatriated person in accordance with United States law.
Article 3
Return of Persons Repatriated in Error
Upon notice by the Vietnamese Government that a person returned to
Vietnam by the U.S. Government does not meet all criteria mentioned in
Article 2 of this Agreement, the U.S. Government should promptly receive
the return of that person to the United States without any special procedure.
Article 4
Acceptance Procedures
1. When the U.S. Government believes that a removable person is a
citizen of Vietnam and meets all criteria within Article 2 of this Agreement,
the U.S. Department of Homeland Security, on behalf of the U.S.
Government, will request appropriate travel documents from the Vietnamese
Government and will forward the appropriate files to that Government. Such
files will include three sets of documents, the original and two copies. The
original and one copy shall be forwarded to the Vietnamese Ministry of
Public Security (Immigration Department) by the U.S. Embassy in Vietnam,
and the other copy will be sent to the Vietnamese Ministry of Foreign Affairs
(Consular Department).
Each file will contain a diplomatic note which requests that the
Vietnamese Government accept the returnee, the name of the person the U.S.
Government believes should be repatriated to Vietnam, the appropriate forms
completed by such person (an example of which is provided in Annex 2 of

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this Agreement), a copy of the order of removal, and other documents
regarding the person's biography, citizenship, criminal history, sentence
imposed, and decision of amnesty or reduction of criminal sentence. The
order of removal will be translated into Vietnamese on the standard form, and
the criminal history will include a National Crime Information Center (NCIC)
record in English accompanied by a code key translated into Vietnamese. All
documents and translations will be certified by the competent U.S. authorities.
2. Upon request by the Vietnamese Government, the U.S. Government
will arrange and facilitate the interview of persons who fall within Article
2(1) of this Agreement by Vietnamese immigration officials to determine
information regarding the Vietnamese citizenship, biographical data, and last
place of residence of such persons. The U.S. Department of Homeland
Security will arrange a venue for those interviews. The U.S. Government also
will facilitate interviews by U.S.-based consular officers of the Vietnamese
Government of deportable persons whom the U.S. believes to be Vietnamese
citizens.
3. The Vietnamese Government will provide a prompt response to the
U.S. Government on cases referred under this Article after the Vietnamese
verification is made. If it is determined that a person whose name and file has
been provided to the Vietnamese Government in accordance with this Article
meets the requirements of Article 2, the Ministry of Public Security of the
Vietnamese Government will issue a travel document authorizing that
person's return to Vietnam, and will provide written notification to the U.S.
Embassy in Vietnam.
4. When the Vietnamese Government has issued a travel document
under this Agreement, the U.S. Government will provide at least fifteen (15)
days notice of the flight and travel arrangements by which the person will be
returned to Vietnam. The U.S. Embassy in Vietnam will inform the Ministry
of Public Security (Immigration Department) and the Ministry of Foreign
Affairs (Consular Department) of the date and number of the flight, the time
of arrival, the port of entry (Noi Bai Airport in Hanoi or Tan Son Nhat Airport
in Ho Chi Minh City), and the details regarding any U.S. officers escorting
the person to be returned (such as names, dates of birth, passport numbers,
estimated times of stay in Vietnam, etc), and allow the Vietnamese side to
confirm receipt of the returnees.
When a person under medical treatment is returned to Vietnam under
this Agreement, the escorting U.S. officers will provide a copy of the person's
health record to the receiving Vietnamese officials at the port of entry. The

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escorting and receiving officers will sign a joint report verifying the person's
repatriation.
Article 5
Expenses
1. The U.S. Government will pay for the cost of transporting
Vietnamese citizens to Vietnam under this Agreement.
2. The U.S. Government will pay for the costs of receiving repatriated
persons including: verifying fee, the receipt at the airport and transportation of
the persons from airport to the place of residences in accordance with the
enclosed Annex 1.
3. The U.S. Government will pay for the cost of arranging interviews
by relevant Vietnamese officials of persons whom the U.S. Government
believes to be Vietnamese citizens and subject to repatriation under this
Agreement.
4. The U.S. Government will pay for the cost of returning to the United
States persons who were repatriated in error, as provided in Article 3 of this
Agreement.
Article 6
Entry into Force and Duration

1. This Agreement will enter into force sixty (60) days from the date of
signature by both Governments.
2. Upon entry into force, this Agreement will be valid for five years.
The Agreement will be extended automatically for terms of three years
thereafter unless written notice not to extend is given by one Government to
the other at least six months prior to the expiration date of the Agreement.
Article 7
Amendment and Supplementation

This Agreement may be amended or supplemented by written
agreement of the Vietnamese Government and the U.S. Government through
appropriate diplomatic channels.

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Article 8
Resolution of Disputes

Any disputes regarding the interpretation and implementation of this
Agreement will be resolved through appropriate diplomatic channels.
Article 9
Suspension or Termination

This Agreement may be suspended or terminated by either
Government. Such suspension or termination of this Agreement will come
into effect after thirty days (30) from the date one Government receives the
written notification from the other Government of its intention to suspend or
terminate.
Done at Hanoi, on 22 January 2008 in duplicate in the English and
Vietnamese languages, both texts being equally authentic.

FOR THE GOVERNMENT OF

THE UNITED STATES
OF

AMERICA

FOR THE GOVERNMENT OF
THE SOCIALIST REPUBLIC OF
VIETNAM

Dr-

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Annex

EXPENSES FOR REPATRIATION

Content
1/ Expenses for verification (including
verification through the Vietnamese Embassy in
the U.S.,) and receipt at airports in Vietnam
2/ Transportation fee for the repatriated person
from airport to the place of residence

Total:

Expenses for Repatriation

$140/person

$ 10/person

$150/person

1