The Trump administration has reinterpreted a 2008 agreement with Vietnam in multiple ways to expand the categories of refugees it can deport, including permanent residents who have committed certain crimes and others who came to the United States as children after the Vietnam War and have lived in their adopted country most of their lives. The effort, which appears to have affected even offspring of U.S. troops who served in the Vietnam War, is part of a broad push to increase the number of immigrants with criminal convictions who are eligible for removal from the U.S, including permanent residents.
The result is a wave of deportations that has fallen heavily on Southeast Asian refugees, including Cambodians who fled the upheaval surrounding the Vietnam War. Many are being returned to countries they have never known – some were born in refugee camps along the way, for example. About 8,000 Vietnamese immigrants were eligible for deportation as of November 2018, including 7,700 who have a criminal conviction, according to the Department of Homeland Security. That number likely has increased as the Trump administration has broadened what constitutes a deportable offense.
But the administration’s focus on deporting Vietnamese specifically, on which I’ve reported for The New York Times and The Atlantic, is unique, because officials in Washington and Hanoi agreed in 2008, under the U.S. administration of Republican President George W. Bush, to exempt a certain category of Vietnamese immigrants in the United States from deportation: those who entered the U.S. before July 12, 1995, the day the two former foes re-established diplomatic relations. The exemption states simply:
“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. and Vietnam.”
This 2008 “memorandum of understanding” (MOU) (which was once available on the State Department’s website but has since been removed) was the first agreement signed between the U.S. and Vietnam on the issue of deportation; Hanoi previously had refused to issue the required travel papers for deportees. The agreement set the parameters for all deportations to Vietnam, and was understood by both parties, as well as Vietnamese-American advocacy organizations, as shielding from removal all Vietnamese immigrants who arrived before 1995, without exception and regardless of whether they were undocumented or had been convicted in the United States of a criminal offense. The MOU initially was valid for five years and was to be extended automatically thereafter for three years at a time, unless either party opts out, which neither side has done publicly.
Yet, despite the fact that the United States appears to have neither withdrawn from the 2008 agreement nor renegotiated the terms with Vietnam, the Trump administration has pursued the deportation of these protected refugees since the early days of its term in office in 2017. The White House has repeatedly reinterpreted the accord unilaterally, and now argues that all Vietnamese immigrants who arrived before 1995 and haven’t become U.S. citizens or permanent residents or forfeited their legal residency with a criminal conviction are eligible to be returned to the country from which they fled.
The First Attempted Reinterpretation
The Trump administration’s first attempts to deport these protected refugees in 2017 put the United States at odds with Vietnam and prompted vociferous objections from then-U.S. Ambassador Ted Osius. The administration went so far as to cut short his term as ambassador in November 2017, right before Trump was due to visit Vietnam, and Osius resigned from the State Department later that year. He has since joined Google as the head of its Asia-Pacific public policy team.
“The case that the Trump administration made is that we send these people back to their countries,” Osius told me during an October 2018 interview in Hồ Chí Minh City. “It’s ludicrous to claim that they’re being sent back to their country,” he noted, because today’s Vietnam is ruled by the successors of the regime that the adult refugees had fought half their lives.
The White House effort to expand categories of immigrants eligible for deportation appears to have been spearheaded by senior adviser Stephen Miller, whom The Atlantic calls “a staunch ideologue and an immigration hawk championing an agenda of right-wing nationalism.” In early 2017, the administration began to argue that people convicted of crimes were not protected by the 2008 Bush-era accord.
Vietnam initially resisted such deportations. So the Trump administration, according to Osius, suggested it would deny “port courtesies,” a type of privilege for VIPs arriving in a country, to senior Vietnamese officials ahead of a scheduled May 2017 White House visit from then-Vietnamese Prime Minister Nguyễn Xuân Phúc.
“I told the [Vietnamese] vice minister of foreign affairs this,” Osius recalled. “He said, ‘well that’s easy, then we won’t come.’”
The U.S. eventually backed off and opted not to deny these port courtesies. But Trump was so focused on the deportations that he raised the issue during the White House meeting, despite the raft of more geopolitically-crucial topics relevant to the U.S.-Vietnam relationship, including security cooperation to thwart China’s efforts to control the South China Sea and Vietnam’s abysmal human rights record.
“Before he (Trump) met with Prime Minister Phúc, the last person to whisper in the president’s ear was Stephen Miller,” recalled Osius, who was in the meeting. “He came and whispered to the president, and the president only raised three things with the prime minister. He raised North Korea, when we were, at that point, trying to isolate North Korea. He raised the trade deficit, because he’s obsessed by trade deficits. And he raised this issue of deportees. And that was it.”
Trump then turned the meeting over to Secretary of State Rex Tillerson, National Security Advisor H.R. McMaster, and U.S. Trade Representative Robert Lighthizer. Vice President Mike Pence also was in the meeting, as was Jared Kushner, Trump’s son-in-law, though he didn’t make any comments during the discussions, Osius said.
Trump “turned it over to them, because he was only interested in those three items,” Osius said. “The fact that deportation was number three in a relationship that has a lot going on, tells you how high the president had elevated” that issue.
The U.S. subsequently pressed Vietnam to accept the deportees it wanted to offload. Hanoi, while hesitant, initially agreed to accept some, mainly to avoid angering Trump, who had previously sanctioned Cambodia, Myanmar, and Laos, among other countries, for refusing to accept nationals the U.S. wanted to deport.
Trump was scheduled for a November 2017 visit to Vietnam, and the hosts, according to Osius, “didn’t want to the President’s trip to be anything other than 100 percent successful.”
Vietnam is keen to retain the goodwill of the United States, particularly as China becomes increasingly assertive in Southeast Asia. Prime Minister Phúc was the first Southeast Asian leader to speak with then-President-elect Trump, Osius said, and the first to visit the Trump White House.
So Vietnam, seeking to remain on good terms ahead of Trump’s visit, agreed to receive the deportees, rather than hold the U.S. to its word and demand that Washington respect the 2008 agreement. And while only about a dozen pre-1995 Vietnamese immigrants were deported from the United States during this period and officials in Hanoi later stiffened their opposition again, Vietnam never outright rejected the Trump administration.
“They never said no,” Osius explained. “They’ve been very pragmatic.”
A Legal Challenge and an Admission
Hanoi’s maneuvering allowed Vietnam to avoid Trump sanctions, unlike Cambodia and Laos. But this resistance did not go wholly unnoticed in the United States, as anti-deportation advocates began realizing that Hanoi was not issuing travel papers for pre-1995 Vietnamese immigrants, rendering them effectively un-deportable once again. Still, U.S. Immigration and Customs Enforcement (ICE) was detaining them beyond 180 days, a limit that had been imposed in a 2001 Supreme Court ruling in Zadvydas v. Davis for immigrants whose deportation is not “reasonably foreseeable.” After 180 days, the government must prove that an immigrant will soon be deported; otherwise, the individual must be released. But the Trump administration refused to publicly admit that Vietnam was no longer accepting deportees, so ICE continued detaining them, considering their deportation to be reasonably foreseeable.
American advocates – three branches of the legal aid group Asian Americans Advancing Justice, aided by two law firms working pro bono, Reed Smith and Davis Adams –– recognized this discrepancy and filed a class action suit against the Trump administration for continuing the detention of these clearly un-deportable Vietnamese. Their suit forced the Trump administration to admit to a California court that it had reached an agreement with Vietnam in August 2018 under which “the removal of pre-1995 Vietnamese is not reasonably foreseeable.”
Nevertheless, the Trump administration argued before the court that ICE retained the right to detain them indefinitely and repeatedly – and apparently in violation of the Supreme Court’s given limit on how long people can be detained when they are unlikely to be deported.
Judge Cormac Carney wrote in his October 2018 ruling, “The government has not conceded that it violated these individuals’ constitutional rights when it detained them with the knowledge that they could not and would not be removed to Vietnam … the government has explicitly reserved its right to redetain all of those it has recently released.”
As of Oct. 15, 2018, 28 Vietnamese immigrants in the pre-1995 category remained in custody; four had been in detention for over 90 days. In November 2018, I repeatedly asked Department of Justice spokesperson Sarah Isgur Flores (who has since joined CNN as a political analyst) to explain the rationale for these deportations. Neither she, nor anyone else at Justice, ever offered comment.
The Current Reinterpretation
The Trump administration’s newest reinterpretation came about two months later, in December 2018, and once again rendered pre-1995 arrivals officially deportable. That allowed for their continued indefinite detention, with their deportation once again “reasonably foreseeable.” This reinterpretation dramatically expanded the scope of its 2017 analog: The Trump administration deemed all non-citizen pre-1995 arrivals eligible for deportation, rather than only those with criminal convictions.
“The United States and Vietnam signed a bilateral agreement on removals in 2008 that establishes procedures for deporting Vietnamese citizens who arrived in the United States after July 12, 1995, and are subject to final orders of removal,” James Thrower, a spokesperson for the U.S. Embassy in Hanoi, told me at the time, in explaining the White House’s new position. “While the procedures associated with this specific agreement do not apply to Vietnamese citizens who arrived in the United States before July 12, 1995, it does not explicitly preclude the removal of pre-1995 cases.”
Thrower’s statement illustrated the administration’s claim that the 2008 agreement, which had previously governed all deportations to Vietnam, was no longer all-encompassing, but instead governed only some deportations to Vietnam, and that its specific exemption of pre-1995 arrivals does not exempt them from deportation writ large, but only from deportation under that agreement. The administration seized on the agreement’s use of the phrase “under this agreement” to pursue the removal of pre-1995 Vietnamese under some other unnamed diplomatic process beyond the confines of the 2008 accord.
The White House’s willingness to adopt this legally dubious reinterpretation seems to stem from its reluctance to renegotiate the entire agreement. If the U.S. had refused to renew the deal, Vietnam would no longer be on the hook to accept any deportees. The White House, clearly not keen on handcuffing itself in this manner, has instead reinterpreted the agreement. That move has enabled ICE to continue deporting post-1995 Vietnamese, while also essentially abridging the deal to remove pre-1995 Vietnamese.
“Why would we be doing this in terms of our relationship with Vietnam? I don’t think that this administration, frankly, cares about that,” said Mike Fuchs, a senior fellow at the Center for American Progress who served as deputy assistant secretary of state for East Asian and Pacific affairs from 2013 to 2016. This instance is another “concrete manifestation” of the negative impact on individuals and U.S. relationships with other nations as a result of Trump administration campaigns on issues such as immigration and trade, Fuchs said.
Since normalization of relations, the U.S.-Vietnam partnership has hinged on economic ties, security cooperation (with specific focus on the South China Sea), human rights, and people-to-people contact, Fuchs said. “What is so depressing, or disappointing, about this focus of the administration on the deportations is that it cuts directly at the heart of [the fourth] pillar of our relationship,” Fuchs told me.
Casting Doubt on U.S. Pledges
While neither the U.S. nor Vietnam have withdrawn from the 2008 agreement, the Vietnamese government has essentially officially conceded to the Trump administration’s entirely new reading of it. With such a concession, the U.S. can deport any non-citizen pre-1995 arrival to Vietnam. Advocates have told me they know of a few who have been deported since December. But it’s unclear if Vietnam is still slow-rolling these removals, as it did in 2017. The number of Vietnamese deported has increased from 35 in 2016 to 71 in 2017 and to 122 in 2018, according to ICE reports.
Broadly speaking, the White House’s actions in this case, as in so many others, call into question the worth of the United States’ pledges and agreements. The Trump administration has made it clear that it is willing to abrogate any international agreements it deems undesirable, regardless of the consequences to America’s image abroad. The Trump administration also continues to detain pre-1995 Vietnamese immigrants, though the number is uncertain.
“They want to deport more people everywhere,” Fuchs told me. “And in Vietnam, there’s an agreement that’s standing in their way. And so they’re going to do whatever kind of legal and intellectual jiu-jitsu they need to in order to justify the end that they want.”
Vietnamese-American advocates have been sounding the alarm, saying the future of their community in the United States is at stake.
“We remain relatively hopeful that the MOU will remain intact,” Katrina Dizon Mariategue, the director of national policy at the Southeast Asia Resource Action Center, told NBC News in January. “But we cannot predict how the U.S. will choose to apply or interpret it.”
IMAGE: Commuters along a street in central Ho Chi Minh City on April 19, 2018. In 2017, some 71 Vietnamese nationals were deported from the U.S. — double the 2016 figure — and another 76 were sent back between January and mid-April 2018, according to data from U.S. Immigration and Customs Enforcement (ICE) which doesn’t track refugees’ date of arrival. (Photo by NHAC NGUYEN/AFP/Getty Images)