Image Credits: @nypl on Unsplash (Unsplash License)

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End of Conflict: The Beginning of a Diaspora

On April 30, 1975, Viet Cong troops rolled through the gates of the Presidential Palace in Saigon, signaling the end of years of brutal conflict in the Mekong Delta, known today as the Vietnam War. After the end of the war, about 1.8 million Vietnamese refugees fled what was once their home, not wanting to be subject to Communist rule, resulting in one of the largest diasporas in the United States. Almost three-quarters, 72 percent, of the first generation arrived before 2000. Many Vietnamese refugees were supported by U.S.-passed legislation and sponsor-families in America. Contemporarily, these areas contain large communities of Vietnamese refugees and have since been integrated into American society. However, Trump administration policies supported in the U.S. District Court decisions have since put a generation of Vietnamese refugees at risk of deportation. 

U.S. Approach to the Vietnamese Diaspora

The Vietnam War had a significant impact on the course of U.S. immigration policy for years to come. At the end of the conflict, the U.S. passed the Indochina Migration and Refugee Assistance Act of 1975. Under President Gerald Ford, this legislation assisted approximately 130,000 refugees from South Vietnam, Laos, and Cambodia, allowing them to enter the United States and establishing a domestic resettlement program. This bill was later amended in 1977 under the sponsorship of Senator Edward Kennedy and permits refugees to adjust to a parolee status and later become permanent residents. 

The Vietnam War and the subsequent diaspora had an immense effect on legislation regarding immigration policy. The U.S. government saw the need for adaptation regarding policy towards the massive influx of refugees. While the Indochina Migration and Refugee Assistance Act of 1975 provided refugee openings, there were many refugee admission restrictions. Recognizing this issue, Congress passed the Refugee Act of 1980, which amended the earlier Migration and Refugee Act of 1975 and set out the following adjustments for refugee treatment:

• Developed the definition of “refugee” to a person with a “well-founded fear of persecution”
• Funded a new Office of U.S. Coordinator for Refugee Affairs and an Office of Refugee Resettlement
• Raised the annual ceiling for refugees from 17,400 to 50,000
• Created a process for reviewing and adjusting the refugee ceiling to meet emergencies

On the international stage, greater attention was given to the problems of the Vietnamese refugee crisis. The United Nations convened the First Geneva Conference on Indochinese Refugees in July 1979. The United States agreed with various nations, including the United Kingdom, France, Australia, and Canada, to be countries of resettlement for refugees. Furthermore, the establishment of the Orderly Departure Program (ODP) interviewed individuals released from Communist Vietnamese reeducation centers and their family members. Working with the Communist Vietnamese government, the ODP allowed 167,000 detainees and 523,000 Vietnamese refugees in total to come to the United States. From 1975 through 2002, a total of 759,482 Vietnamese arrived in the United States as refugees. 

Trinh v. Homan

In 2017, Immigration and Customs Enforcement (ICE) imprisoned dozens of Vietnamese immigrants across the country. The population of Vietnamese detainees includes those who came before 1995. Before 1995, ICE has historically been unable to remove Vietnamese immigrants with deportation orders to Vietnam. Instead of releasing pre-1995 Vietnamese immigrants as they usually did, ICE abruptly changed their practices and imprisoned pre-1995 immigrants. This move reversed a 2008 Memorandum of Understanding agreed upon by Vietnam and the United States, which set parameters for deportations to Vietnam, including shielding the removal of all Vietnamese immigrants before the year 1995. In February 2018, a nationwide class action was filed by various advocacy law groups such as the Advancing Justice-Atlanta, Advancing Justice-Asian Law Caucus, and Advancing Justice-Los Angeles against ICE’s detention of pre-1995 Vietnamese immigrants under Zadydas v. Davis. This previous SCOTUS case held that it would be unconstitutional to keep an alien under indefinite detention.

Attempting to dismiss the Trinh lawsuit, ICE admitted their inability to deport pre-1995 immigrants and agreed to release pre-1995 immigrants to them within 90 days of their deportation orders. However, Vietnam began issuing travel documents for the initially detained immigrants. As a result, the District Court denied the Trinh plaintiff’s request to grant relief to all pre-1995 immigrants. The court ruled that they must seek a release from detention by filing individual lawsuits. In November 2020, the United States and Vietnam signed a Memorandum of Understanding, officially creating a process for deporting the pre-1995 immigrants. In return for resolving the Trinh lawsuit, ICE agreed to follow specific regulations:

• Providing bond hearings after 180 days of detention for pre-1995 immigrants in the 9th Circuit (California, Washington, Arizona) and the 3rd Circuit (Pennsylvania, New Jersey, Delaware)
• Providing quarterly reports for 2 years regarding pre-1995 Vietnamese immigrants who have been detained for more than 90 days or who have been issued travel documents
• Providing notice if ICE changes its position that pre-1995 immigrants are generally unlikely to be deported and should be released within 90 days of their deportation orders

The Influence of Trump Administration Policy 

The Trump administration’s policies can explain this abrupt shift in practices by ICE. As he was beginning his presidency, Donald Trump publicly told CBS “60 Minutes” that he intended to deport or “incarcerate” 2 million or “even 3 million” people and during his campaign, promised to deport all 11 million refugees in the US. Moving towards the early days of Trump’s presidency, his administration pursued the deportation of these protected refugees. Despite not having stated any withdrawal from the 2008 Memorandum of Understanding, the administration argued that any Vietnamese immigrant who arrived before 1995 and had not become a U.S. citizen or permanent resident with a criminal conviction was eligible to be returned to Vietnam. Furthermore, with Vietnam’s initial resistance to these deportations, the Trump administration pushed this idea by threatening to deny “port courtesies,” a privilege for VIPS arriving in the United States. Trump’s decisions met severe backlash from other national officials, such as the then-ambassador of Vietnam, Ted Osius. He explains that deporting Vietnamese immigrants back to Vietnam is sending them back to a nation ruled by successors of a regime they sought to fight and flee from in the first place. 

The Impact of Trinh v. Homan Decision

The decision of Trinh v. Homan sets an essential guideline for Vietnamese refugees in America. The case re-determines the boundaries for ICE’s ability to deport Vietnamese Americans. For years before the Trinh v. Homan decision, the United States sought to preserve the rights of Vietnamese citizens through the Indochina Migration and Refugee Assistance Act of 1975 and being one of the original members of the First Geneva Conference on Indochinese Refugees, deciding to welcome resettling Vietnamese refugees into America. The United States’ former commitment to supporting refugees for years has diverged as a result of Trump administration policies and court decisions that provide agencies such as ICE broader abilities to deport refugees back to a country with a government they sought to flee from initially. At the time of writing, Trump is set to win the Republican primary, leading to the risk of refugees, not only Vietnamese refugees worldwide.