Deportation of Cambodian refugees from the United States

Deportation of Cambodian refugees from the United States refers to the refoulment (or involuntary removal) of Cambodian-Americans convicted of common crimes in the United States.[1] The overwhelming majority of these individuals in removal proceedings were admitted to the United States in the 1980s with their refugee family members after escaping from the Cambodian genocide, and have continuously spent decades in the United States as lawful permanent residents (green card holders).[2][3][4][5]

According to the Immigration and Nationality Act (INA), these Cambodian-Americans did not enter the United States with immigrant visas as lawful permanent residents but rather with special travel documents as refugees.[6] As such, they have been exempt from deportation since 1980 when the U.S. Congress enacted INA §§ 207 and 209, 8 U.S.C. §§ 1157 and 1159.[7][8][9][10] This legal finding is supported by latest precedents of all the U.S. courts of appeals and the Board of Immigration Appeals (BIA),[11] which are binding on all immigration judges and Department of Homeland Security (DHS) officers.[12][13][14][15][16][17][18]

History

Cambodians escaping genocide and persecution

In 1975, the U.S. Congress and the Ford administration enacted the Indochina Migration and Refugee Assistance Act, which allowed about 130,000 natives of Cambodia, Laos, and South Vietnam to be admitted to the United States as refugees.[6] It is important to note that the Cambodian refugees were fleeing from genocide that was orchestrated by the Communist Khmer Rouge government.

In 1980, the U.S. Congress and the Carter administration enacted the Refugee Act, which allowed an annual admission of 50,000 international refugees to the United States.[19] Before enacting the Refugee Act, Congress was well aware of the fact that refugees are not priests and nuns but ordinary humans prone to committing a crime just like many Americans commit a crime in the United States.

Cambodian refugees arriving to the United States

Each year, from 1975 onward, groups of hundreds of Cambodian refugee families entered the United States. After residing for at least one year, the then Immigration and Naturalization Service (INS) adjusted their status to lawful permanent residents of the United States.[10] This process statutorily protected them from refoulment (forceful deportation) from the United States for lifetime.[20][21]

Most of the Cambodian refugee families were firmly resettled in and around Long Beach, California, Lowell, Massachusetts, Lynn, Massachusetts, and Philadelphia, Pennsylvania.[22][23] In Landon v. Plasencia, 459 U.S. 21, 32 (1982), the U.S. Supreme Court reminded the Attorney General that "once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly." That opinion was issued after Congress and the Reagan administration firmly resettled in the United States refugees from various countries.[6]

United States Congress provides statutory relief to Cambodian-Americans against removability

The INA historically stated that "[t]he term 'alien' means any person not a citizen or national of the United States."[24] The terms "inadmissible aliens" and "deportable aliens" are synonymous.[20][21] If a person is not inadmissible to the United States then that person is not deportable from the United States unless Congress states otherwise. In this regard, INA § 207(c), 8 U.S.C. § 1157(c), expressly provides the following:

The provisions of paragraphs (4), (5), and (7)(A) of section 1182(a) . . . shall not be applicable to any alien seeking admission to the United States under this subsection, and the Attorney General may waive any other provision of [section 1182] . . . with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. (emphasis added).[9][25]

INA § 209, 8 U.S.C. § 1159, provides the following:

The provisions of paragraphs (4), (5), and (7)(A) of section 1182(a) . . . shall not be applicable to any alien seeking adjustment of status under this section, and the Secretary of Homeland Security or the Attorney General may waive any other provision of [section 1182] . . . with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. (emphasis added).[10][25]

In addition to the above provisions, INA § 212(h), 8 U.S.C. § 1182(h), provides the following:

The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) . . . if. . . it is established to the satisfaction of the Attorney General that. . . the [crime] for which the alien is [removable] occurred more than 15 years before the date of the alien's application for a visa, admission, or adjustment of status, . . . the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and . . . the alien has been rehabilitated; or . . . in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien. . . . (emphasis added).[11][25]

It is absolutely critical to take notice that the penultimate sentence in § 1182(h), where it repeatedly mentions the phrase under this subsection, does not apply to any Cambodian-American requesting relief under §§ 1157(c)(3) and 1159(c). Cambodian-Americans are still refugees.[6] This means that a Cambodian-American convicted for any offense mentioned in § 1101(a)(43)(A) is not (and has never been) precluded from relief under §§ 1157(c)(3) and 1159(c).[11] It has long been understood in the United States that whenever "Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."[26]

The above INA provisions are in clear harmony with each other. Secondly, providing relief under §§ 1157(c)(3) and 1159(c) is not discretionary but mandatory,[27] and the above provisions all involve "legal claims" (i.e., constitutional claims or questions of law). As such, federal courts are empowered to review these "legal claims" at any time, especially if the cases involve exceptional circumstances.[28][29][30][31][32] The U.S. Court of Appeals for the Ninth Circuit recently confirmed this by stating the following:

[W]e have not specifically addressed whether we have jurisdiction to review the Board's denial of a motion to reopen sua sponte for the limited purpose of determining whether the Board based its decision on legal or constitutional error. Several circuits have held that courts of appeal do have such limited jurisdiction . . . we agree with those decisions.[33]

Expansion of the definition of "nationals but not citizens of the United States"

In 1986, less than a year before the United Nations Convention against Torture (CAT) became effective, Congress expressly and intentionally expanded the definition of "nationals but not citizens of the United States" by adding paragraph (4) to 8 U.S.C. § 1408, which reads as follows:

Unless otherwise provided in section 1401 of this title, the following shall be nationals, but not citizens, of the United States at birth: .... (4) A person born outside the United States and its outlying possessions of parents one of whom is an alien, and the other a national, but not a citizen, of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than seven years in any continuous period of ten years—(A) during which the national parent was not outside the United States or its outlying possessions for a continuous period of more than one year, and (B) at least five years of which were after attaining the age of fourteen years. (emphasis added).[34][27]

The natural reading of § 1408(4) demonstrates that it was not exclusively written for the 55,000 American Samoans but for all people who statutorily and manifestly qualify as "nationals but not citizens of the United States."[34][27] This means that any Cambodian-American who can show by a preponderance of the evidence that he or she meets (or at any time has met) the requirements of 8 U.S.C. §§ 1408(4) and 1436 is plainly and unambiguously a "national but not a citizen of the United States."[35][31] Such person must never be labelled or treated as an alien, especially after demonstrating that he or she has continuously resided in the United States for at least 10 years without committing any offense that may trigger removability.[13][14][15][16][36] "Deprivation of [nationality]—particularly American [nationality], which is one of the most valuable rights in the world today—has grave practical consequences."[17]

Introduction of "aggravated felony"

In 1988, Congress introduced the term "aggravated felony" by defining it under 8 U.S.C. § 1101(a).[37] The definition of the term gradually expanded over the years. In February 1995, U.S. President Bill Clinton issued a directive in which he expressly stated the following:

Our efforts to combat illegal immigration must not violate the privacy and civil rights of legal immigrants and U.S. citizens. Therefore, I direct the Attorney General, the Secretary of Health and Human Services, the Chair of the Equal Employment Opportunity Commission, and other relevant Administration officials to vigorously protect our citizens and legal immigrants from immigration-related instances of discrimination and harassment. All illegal immigration enforcement measures shall be taken with due regard for the basic human rights of individuals and in accordance with our obligations under applicable international agreements. (emphasis added).[18][27]

Illegal Immigration Reform and Immigrant Responsibility Act

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which is particularly aimed at combating illegal immigration to the United States.[38] However, many incompetent U.S. immigration officials began arresting and detaining long-settled legal immigrants (i.e., potential Americans).[39][40][10] Unlike illegal aliens, legal immigrants have permanent resident cards, Social Security numbers, driver's licenses, state ID cards, bank accounts, credit cards, insurances, etc., and they work legally, own homes and businesses in the United States, and some of them, especially the above refugees-turned-immigrants whose statuses had been lawfully enhanced to permanent residents, statutorily qualified as nationals of the United States after continuously residing in the country for at least 10 years without committing any offense that may trigger removability.[41] This appears to be the reason why the permanent resident card (green card) is valid for 10 years. It was expected that all Cambodian-Americans would obtain citizenship of the United States within 10 years of their arrival,[42] but if that was unachievable then they statutorily become "nationals but not a citizen of the United States" after such 10 years elapse. Anything to the contrary is plainly unconstitutional.[43][13][14][15][16][17][18]

In other words, despite being lawful permanent residents of the United States, the Cambodian-Americans are still "refugees" under the INA and international law,[6][9][10] and they obviously owe permanent allegiance solely to the government of the United States.[44][24] These Cambodian-Americans have never pledged allegiance to the Khmer Rouge government, which dissolved in late 1999, nor to the new government that came to power afterwards. This makes them nothing but non-citizen "nationals of the United States," which simply means that they are Americans who cannot become U.S. citizens but allowed to live in the United States with their American families for the rest of their life.[1] Deporting such Americans constitutes a gravely serious international crime.[13][14][15][16][36][17][18]

"Only aliens are subject to removal."[45] As mentioned above, the terms "inadmissible aliens" and "deportable aliens" are synonymous.[20] It is common knowledge that these "aliens" mainly refer to the 75 million aliens who visit the United States each year,[46][47] the 12 million aliens who are in the country illegally, and the 400,000 aliens who possess the temporary protected status (TPS). A lawful permanent resident (immigrant) can either be an "alien" or a "national of the United States," which requires a case-by-case analysis and depends mainly on the number of continuous years he or she has spent in the United States as a green card holder.[36][31][35] The INA makes clear that any alien or any "national but not a citizen of the United States" who at any time has been convicted of any aggravated felony, whether the aggravated felony was committed inside or outside the United States, is "debarred from becoming a citizen of the United States."[48][49][50][51][52][53] However, unlike a "national but not a citizen of the United States," an "alien" convicted of any aggravated felony is statutorily "removable" from the country.[21] In other words, such alien cannot:

An alien's "order of deportation" may be reviewed "at any time" and by any immigration judge, any BIA member, and finally by any authorized federal judge.[28] Particular cases, especially those that were adjudicated in any U.S. district court prior to the enactment of the Real ID Act of 2005, can be reopened under Rule 60 of the Federal Rules of Civil Procedure.[29] The review of the order does not require the alien or the non-citizen "U.S. national" to remain in the United States. It can be requested from anywhere in the world via mail (e.g., DHL, FedEx, UPS, etc.) and/or electronic court filing (ECF),[60] and the case can be filed in any court the person finds appropriate.[40]

Every illegal deportation claim, United States nationality claim, and CAT or asylum claim is adjudicated under 8 U.S.C. §§ 1252(a)(4), 1252(b)(4), 1252(b)(5) and 1252(f)(2). When these specific provisions are invoked, all other contrary provisions of law, especially § 1252(b)(1) and Stone v. INS, 514 U.S. 386, 405 (1995) (case obviously decided prior to IIRIRA of 1996, which materially changed the old "judicial review provisions of the INA"),[38] must be disregarded because these "claims" manifestly constitute exceptional circumstances.[61][29][35][31][30][32] The Supreme Court has pointed out that "the context surrounding IIRIRA's enactment suggests that § 1252(f)(2) was an important—not a superfluous—statutory provision."[62]

According to § 1252(f)(1), "no court (other than the Supreme Court)" is authorized to determine which two or more Cambodian-Americans should be recognized as "nationals but not citizens of the United States."[30] The remaining courts, however, are empowered pursuant to §§ 1252(b)(5) and 1252(f)(2) to, inter alia, issue an injunction to terminate any Cambodian-American's removal proceedings; return a wrongfully removed Cambodian-American to the United States; and/or to confer United States nationality upon any Cambodian-American (but only using a case-by-case analysis).[30][32][35] In addition to that, under 8 C.F.R. 239.2, any officer mentioned in 8 C.F.R. 239.1 may sua sponte at any time terminate the case of any Cambodian-American who turns out to be a national of the United States or one who is simply not removable under the INA.[55][56][21]

Number of Cambodian-Americans physically removed from the United States

Between the years of 2001 and 2016, approximately 750 Cambodian-Americans have been physically removed from the United States.[2] Of these, at least 12 have died of suicide in Cambodia and another 17 became incarcerated in the Cambodian prison system.[22] U.S. government data shows that deportation of Cambodian-Americans averaged 41 per year from 2001 through 2010, increasing to 97 in 2011 and 93 in 2012.[22] Nationwide, nearly 1,900 Cambodian-Americans have "final orders" of removal, meaning they can be deported from the United States at any time, while more than 669 are in removal proceedings.[2]

Deported Cambodian-Americans are typically young men in their twenties and thirties who were either born inside Cambodia or in refugee camps in neighboring Thailand.[3][1][4][63] Most were admitted to the United States as small children of refugee families, members of the so-called 1.5 generation.[2] A 2005 survey by one immigrant advocacy organization showed that the Cambodian-American deportees had continuously resided in the United States for an average of 20 years.[64] Many of those deported after 2005 have continuously resided in the United States for over 30 years.[3][65] As such, they received most or all of their education in the United States, often speak Khmer language very poorly.[66] Unlike other deported immigrants, such as South Americans or Europeans, the Cambodian-American deportees have not visited Cambodia in decades. Many of them saw it for the first time after their deportation.[22][3] In sum, these deportees are indisputably Americans and no longer Cambodians.[3][34][31][35]

Reason for deportation

Most Cambodian-Americans were deported for committing a crime in the United States.[67] Several of them were convicted for firearm offenses but such offenses plainly and unambiguously do not apply to lawful permanent residents.[68]

Notable Cambodian-American deportees

  • Chally Dang, born in a refugee camp in Thailand but grew up in Philadelphia, Pennsylvania. He was convicted of Pennsylvania assault and related charges in 1998 (around the age of 15), which was his very first conviction. He was refouled (involuntarily deported) to Cambodia in June of 2011. His deportation separated him from his parents, spouse, and children.[69]
  • Tuy Sobil, a deported Cambodian-American who operates Tiny Toones, which was established as a breakdancing ("b-boying") for poor urban Cambodian children. Sobil grew up in Long Beach, California, where he was exposed to b-boying and danced for four years after seeing it in the local parks. His family immigrated to the United States as refugees in 1980, when he was an infant. He was convicted of a California robbery charge (around the age of 18). As a result of that conviction, he was refouled (involuntarily deported) to Cambodia in 2004.[5][70]

Organizations helping Cambodian-American deportees

Demonstrations

A number of demonstrations have been witnessed in several U.S. cities over the deportation of Cambodian-Americans.[72]

See also

References

  1. 1 2 3 "NBC Asian America Presents: Deported". NBC. March 16, 2017. Retrieved 2018-10-11.
  2. 1 2 3 4 Federis, Marnette (March 10, 2018). "After deportation, a family from Wisconsin will start anew in Cambodia". Public Radio International (PRI). Retrieved 2018-09-27.
  3. 1 2 3 4 5 McCormick, Andrew (August 25, 2017). "Strangers in their homeland: the Khmerican Cambodians Trump deported". South China Morning Post (SCMP). Retrieved 2018-09-26. For many deportees, the United States had been home for decades. Now, they struggle to adjust to life in the country of their birth
  4. 1 2 Barros, Aline (December 7, 2017). "US Set to Deport 70 Cambodians". Voice of America (VoA). Retrieved 2018-09-26.
  5. 1 2 Mydans, Seth (November 30, 2008). "Californian finds new life in Cambodia". New York Times. Retrieved September 26, 2018.
  6. 1 2 3 4 5 8 U.S.C. § 1101(a)(42) ("The term 'refugee' means (A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable ... to return to, and is unable ... to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion....") (emphasis added).
  7. ↑ "INA: ACT 207 - ANNUAL ADMISSION OF REFUGEES AND ADMISSION OF EMERGENCY SITUATION REFUGEES". United States Citizenship and Immigration Service (USCIS). Retrieved 2018-10-12.
  8. ↑ "INA: ACT 209 - ADJUSTMENT OF STATUS OF REFUGEES". United States Citizenship and Immigration Service (USCIS). Retrieved 2018-10-12.
  9. 1 2 3 4 5 6 8 U.S.C. § 1157(c)(3)
  10. 1 2 3 4 5 8 U.S.C. § 1159(c)
  11. 1 2 3 4 8 U.S.C. § 1182(h); Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015) (collecting court cases) ("An alien who adjusted status in the United States, and who has not entered as a lawful permanent resident, is not barred from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), as a result of an aggravated felony conviction.") (emphasis added); De Leon v. Lynch, 808 F.3d 1224, 1232 (10th Cir. 2015) ("Mr. Obregon next claims that even if he is removable, he should nevertheless have been afforded the opportunity to apply for a waiver under 8 U.S.C. § 1182(h). Under controlling precedent from our court and the BIA's recent decision in Matter of J–H–J–, he is correct."); see also Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014) ("A lawful permanent resident who is otherwise eligible for relief under former section 212(c) of the Act may apply for such relief in removal or deportation proceedings without regard to whether the relevant conviction resulted from a plea agreement or a trial and without regard to whether he or she was removable or deportable under the law in effect when the conviction was entered."); Ledezma-Galicia v. Holder, 599 F.3d 1055 (9th Cir. 2010) ("We conclude that he may not be removed, because (1) the 1988 law that made aliens deportable for aggravated felony convictions did not apply to convictions prior to November 18, 1988; and (2) neither Congress's overhaul of the grounds for deportation in 1990 nor its rewrite of the definition of aggravated felony in 1996 erased that temporal limitation.").
  12. ↑ "Board of Immigration Appeals". U.S. Dept. of Justice. March 16, 2018. Retrieved 2018-09-27. BIA decisions are binding on all DHS officers and immigration judges unless modified or overruled by the Attorney General or a federal court.
  13. 1 2 3 4 "Deprivation Of Rights Under Color Of Law". U.S. Dept. of Justice. August 6, 2015. Retrieved 2018-09-27. Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under 'color of law' include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim. The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any. (emphasis added).
  14. 1 2 3 4 18 U.S.C. §§ 241–249; United States v. Lanier, 520 U.S. 259, 264 (1997) ("Section 242 is a Reconstruction Era civil rights statute making it criminal to act (1) 'willfully' and (2) under color of law (3) to deprive a person of rights protected by the Constitution or laws of the United States."); United States v. Lanier, 123 F.3d 945 (6th Cir. 1997); Hope v. Pelzer, 536 U.S. 730, 736-37 (2002); United States v. Acosta, 470 F.3d 132, 136 (2d Cir. 2006) (holding that 18 U.S.C. §§ 241 and 242 are "crimes of violence"); see also 42 U.S.C. §§ 1981–1985; Ziglar v. Abbasi, 582 U.S. ___ (2017).
  15. 1 2 3 4 "Article 16". Office of the United Nations High Commissioner for Human Rights. Retrieved 2018-09-27. [The United States] shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. (emphasis added).
  16. 1 2 3 4 "Chapter 11 - Foreign Policy: Senate OKs Ratification of Torture Treaty" (46th ed.). CQ Press. 1990. p. 806-7. Retrieved 2018-09-27. The three other reservations, also crafted with the help and approval of the Bush administration, did the following: Limited the definition of 'cruel, inhuman or degrading' treatment to cruel and unusual punishment as defined under the Fifth, Eighth and 14th Amendments to the Constitution.... (emphasis added).
  17. 1 2 3 4 Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963) (citation and internal quotation marks omitted); see also Arizona v. United States, 567 U.S. 387, 395 (2012) ("Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad."); "Certificates of Non Citizen Nationality". Bureau of Consular Affairs. U.S. Department of State. Retrieved 2018-09-26.
  18. 1 2 3 4 "60 FR 7885: ANTI-DISCRIMINATION" (PDF). U.S. Government Publishing Office. February 10, 1995. p. 7888. Retrieved 2018-09-26. See also Zuniga-Perez v. Sessions, ___ F.3d ___, ___, No. 17-996, p.11 (2d Cir. July 25, 2018) ("The Constitution protects both citizens and non‐citizens.") (emphasis added).
  19. ↑ 8 U.S.C. § 1101(a)(13)(A) ("The terms 'admission' and 'admitted' mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.") (emphasis added).
  20. 1 2 3 Galindo v. Sessions, ___ F.3d ___, ___, No. 17-1253, p.4-5 (7th Cir. July 31, 2018) (explaining that under the Immigration and Nationality Act (INA), the terms "inadmissible" aliens and "deportable" aliens are synonymous).
  21. 1 2 3 4 8 U.S.C. § 1229a(e)(2) ("The term 'removable' means—(A) in the case of an alien not admitted to the United States, that the alien is inadmissible under section 1182 of this title, or (B) in the case of an alien admitted to the United States, that the alien is deportable under section 1227 of this title."); see also Tima v. Attorney General of the U.S., ___ F.3d ___, ___, No. 16-4199, p.11 (3d Cir. Sept. 6, 2018) ("Section 1227 defines '[d]eportable aliens,' a synonym for removable aliens.... So § 1227(a)(1) piggybacks on § 1182(a) by treating grounds of inadmissibility as grounds for removal as well.").
  22. 1 2 3 4 5 "Cambodian-Americans confronting deportation". Olesia Plokhii and Tom Mashberg. Boston Globe. January 27, 2013. Retrieved 2014-05-10.
  23. ↑ Pert, Charlotte Pert (June 26, 2016). "Torn families of Cambodian refugees deported from US". Al Jazeera. Retrieved 2018-09-28.
  24. 1 2 8 U.S.C. § 1101(a)(3) (emphasis added); see also 8 U.S.C. § 1101(a)(22) ("The term 'national of the United States' means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.") (emphasis added); Ricketts v. Attorney General of the U.S., ___ F.3d ___, ___, No. 16-3182, p.5 note 3 (3d Cir. July 30, 2018) ("Citizenship and nationality are not synonymous."); 8 U.S.C. § 1101(a)(31) ("The term 'permanent' means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law."); 8 U.S.C. § 1101(a)(33) ("The term 'residence' means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent."); Black's Law Dictionary at p.87 (9th ed., 2009) (defining the term "permanent allegiance" as "[t]he lasting allegiance owed to [the United States] by its citizens or [permanent resident]s.") (emphasis added).
  25. 1 2 3 Jennings v. Rodriguez, 138 S.Ct. 830, 855-56 (2018) (Justice Thomas concurring) ("The term 'or' is almost always disjunctive, that is, the [phrase]s it connects are to be given separate meanings.").
  26. ↑ United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972); see also United States v. Wooten, 688 F.2d 941, 950 (4th Cir. 1982).
  27. 1 2 3 4 Alabama v. Bozeman, 533 U.S. 146, 153 (2001) ("The word 'shall' is ordinarily the language of command.") (internal quotation marks omitted).
  28. 1 2 8 U.S.C. § 1101(a)(47); Reyes Mata v. Lynch, 576 U.S. ___, ___, 135 S.Ct. 2150, 1253 (2015); Nassiri v. Sessions, No. 16-60718 (5th Cir. Dec. 14, 2017); Alimbaev v. Att'y, 872 F.3d 188, 194 (3d Cir. 2017); Matter of A-N- & R-M-N-, 22 I&N Dec. 953 (BIA 1999) (en banc) ("Aliens seeking to reopen exclusion proceedings to apply for asylum and withholding of deportation who have presented evidence establishing materially changed circumstances in [Cambodia] or [the United States], such that they meet the general requirements for motions to reopen, need not demonstrate 'reasonable cause' for their failure to appear at the prior exclusion hearing.") (emphasis added).
  29. 1 2 3 United States v. Bueno-Sierra, No. 17-12418, p.6-7 (6th Cir. Jan. 29, 2018) ("Rule 60(b)(1) through (5) permits a district court to set aside an otherwise final judgment on a number of specific grounds, such as mistake, newly discovered evidence, an opposing party’s fraud, or a void or satisfied judgment. Rule 60(b)(6), the catch-all provision, authorizes a judgment to be set aside for 'any other reason that justifies relief.' Rule 60(d)(3) provides that Rule 60 does not limit a district court’s power to 'set aside a judgment for fraud on the court.'") (citations omitted) (unpublished); Herring v. United States, 424 F.3d 384, 386-87 (3d Cir. 2005) ("In order to meet the necessarily demanding standard for proof of fraud upon the court we conclude that there must be: (1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) in fact deceives the court."); 18 U.S.C. § 371; 18 U.S.C. § 1001 (court employees (including judges and clerks) have no immunity from prosecution under this section of law); Luna v. Bell, 887 F.3d 290, 294 (6th Cir. 2018) ("Under Rule 60(b)(2), a party may request relief because of 'newly discovered evidence.'"); United States v. Handy, ___ F.3d ___, ___, No. 18-3086, p.5-6 (10th Cir. July 18, 2018) ("Rule 60(b)(4) provides relief from void judgments, which are legal nullities.... [W]hen Rule 60(b)(4) is applicable, relief is not a discretionary matter; it is mandatory. And the rule is not subject to any time limitation.") (citations, brackets, and internal quotation marks omitted); Mattis v. Vaughn, No. 99-6533, p.3-4 (E.D. Pa. June 4, 2018); accord Satterfield v. Dist. Att'y of Phila., 872 F.3d 152, 164 (3d Cir. 2017) ("The fact that . . . proceeding ended a decade ago should not preclude him from obtaining relief under Rule 60(b) if the court concludes that he has raised a colorable claim that he meets this threshold actual-innocence standard ...."); see also United States v. Olano, 507 U.S. 725, 736 (1993) ("In our collateral review jurisprudence, the term 'miscarriage of justice' means that the defendant is actually innocent.... The court of appeals should no doubt correct a plain forfeited error that causes the conviction or sentencing of an actually innocent defendant....") (citations omitted); Davis v. United States, 417 U.S. 333, 346-47 (1974) (regarding "miscarriage of justice" and "exceptional circumstances"); Gonzalez-Cantu v. Sessions, 866 F.3d 302, 306 (5th Cir. 2017) (same); Pacheco-Miranda v. Sessions, No. 14-70296 (9th Cir. Aug. 11, 2017) (same); In re Wagner Aneudis Martinez, A043 447 800 (BIA Jan. 12, 2016) (same; unpublished three-member panel decision); In re Vikramjeet Sidhu, A044 238 062 (BIA Nov. 30, 2011) (same; unpublished three-member panel decision); accord Matter of G-N-C-, 22 I&N Dec. 281, 285 (BIA 1998) (en banc); Matter of JJ-, 21 I&N Dec. 976 (BIA 1997) (en banc).
  30. 1 2 3 4 5 Jennings v. Rodriguez, 583 U.S. ___, 138 S.Ct. 830, 875 (2018) (p.42 here); Wheaton College v. Burwell, 134 S.Ct. 2806, 2810-11 (2014) ("Under our precedents, an injunction is appropriate only if (1) it is necessary or appropriate in aid of our jurisdiction, and (2) the legal rights at issue are indisputably clear.") (internal quotation marks and brackets omitted); Lux v. Rodrigues, 561 U.S. 1306, 1308 (2010); Correctional Services Corp. v. Malesko, 534 U.S. 61, 74 (2001) (stating that "injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally."); Alli v. Decker, 650 F.3d 1007, 1010-11 (3d Cir. 2011) (same); Andreiu v. Ashcroft, 253 F.3d 477, 482-85 (9th Cir. 2001) (en banc) (same); see also 8 U.S.C. § 1326(d) ("Limitation on collateral attack on underlying deportation order").
  31. 1 2 3 4 5 Ricketts v. Attorney General of the U.S., ___ F.3d ___, ___, No. 16-3182, p.2 (3d Cir. July 30, 2018) ("When an alien faces removal under the Immigration and Nationality Act, one potential defense is that the alien is not an alien at all but is actually a national of the United States."); Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 15 (D.C. Cir. 2015) ("The sole such statutory provision that presently confers United States nationality upon non-citizens is 8 U.S.C. § 1408."); Matter of Navas-Acosta, 23 I&N Dec. 586, 587 (BIA 2003) ("If Congress had intended nationality to attach at some point before the naturalization process is complete, we believe it would have said so."); 8 U.S.C. § 1436 ("A person not a citizen who owes permanent allegiance to the United States, and who is otherwise qualified, may, if he becomes a resident of any State, be naturalized upon compliance with the applicable requirements of this subchapter...."); Saliba v. Att’y Gen., 828 F.3d 182, 189 (3d Cir. 2016) ("Significantly, an applicant for naturalization has the burden of proving 'by a preponderance of the evidence that he or she meets all of the requirements for naturalization.'"); 8 U.S.C. § 1101(a)(23) ("The term 'naturalization' means the conferring of [United States nationality] upon a person after birth, by any means whatsoever.") (emphasis added); TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) ("It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.") (internal quotation marks omitted); see also In re Petition of Haniatakis, 376 F.2d 728 (3d Cir. 1967); In re Sotos' Petition, 221 F. Supp. 145 (W.D. Pa. 1963).
  32. 1 2 3 4 Singh v. USCIS, 878 F.3d 441, 443 (2d Cir. 2017) ("The government conceded that Singh's removal was improper.... Consequently, in May 2007, Singh was temporarily paroled back into the United States by the Attorney General, who exercised his discretion to grant temporary parole to certain aliens."); Orabi v. Att’y Gen., 738 F.3d 535, 543 (3d Cir. 2014) ("The judgment of the BIA will therefore be reversed, with instructions that the Government... be directed to return Orabi to the United States in accordance with the ICE regulations cited."); Avalos-Palma v. United States, No. 13-5481 (FLW), 2014 WL 3524758, p.3 (D.N.J. July 16, 2014) ("On June 2, 2012, approximately 42 months after the improper deportation, ICE agents effectuated Avalos-Palma's return to the United States."); In re Vikramjeet Sidhu, A044 238 062, at 1-2 (BIA Nov. 30, 2011) ("As related in his brief on appeal, the respondent was physically removed from the United States in June 2004, but subsequently returned to this country under a grant of humanitarian parole (Brief at 2).... Accordingly, the proceedings will be terminated.") (three-member panel).
  33. ↑ Bonilla v. Lynch, 840 F.3d 575, 581-82 (9th Cir. 2016) (citations omitted).
  34. 1 2 3 8 U.S.C. § 1408 ("Nationals but not citizens of the United States at birth"); see also 8 U.S.C. § 1436 ("Nationals but not citizens....").
  35. 1 2 3 4 5 6 Khalid v. Sessions, ___ F.3d ___, ___, No. 16‐3480‐ag, p.6 (2d Cir. Sept. 13, 2018) ("Khalid is a U.S. citizen and the Department of Homeland Security (DHS) must terminate removal proceedings against him.") (oral argument (audio)); Jaen v. Sessions, 899 F.3d 182 (2d Cir. 2018) (same); Anderson v. Holder, 673 F.3d 1089, 1092 (9th Cir. 2012) (same); Dent v. Sessions, ___ F.3d ___, ___, No. 17-15662, p.10-11 (9th Cir. Aug. 17, 2018) ("An individual has third-party standing when [(1)] the party asserting the right has a close relationship with the person who possesses the right [and (2)] there is a hindrance to the possessor's ability to protect his own interests.") (quoting Sessions v. Morales-Santana, 582 U.S. ___, ___, 137 S.Ct. 1678, 1689 (2017)) (internal quotation marks omitted); Gonzalez-Alarcon v. Macias, 884 F.3d 1266, 1270 (10th Cir. 2018); Hammond v. Sessions, No. 16-3013, p.2-3 (2d Cir. Jan. 29, 2018) ("It is undisputed that Hammond's June 2016 motion to reconsider was untimely because his removal order became final in 2003.... Here, reconsideration was available only under the BIA's sua sponte authority. 8 C.F.R. 1003.2(a). Despite this procedural posture, we retain jurisdiction to review Hammond's U.S. [nationality] claim."); accord Duarte-Ceri v. Holder, 630 F.3d 83, 87 (2d Cir. 2010) ("Duarte's legal claim encounters no jurisdictional obstacle because the Executive Branch has no authority to remove a [national of the United States]."); 8 C.F.R. 239.2; see also Yith v. Nielsen, ___ F.3d ___, ___, No. 16-15858, p.5-6 (9th Cir. Feb. 7, 2018) ("Once applicants have exhausted administrative remedies, they may appeal to a district court."); 8 U.S.C. § 1447(b) ("Request for hearing before district court").
  36. 1 2 3 Edwards v. Sessions, No. 17-87, p.3 (2d Cir. Aug. 24, 2018) ("In removal proceedings involving an LPR, the government bears the burden of proof, which it must meet by adducing clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.") (internal quotation marks omitted) (summary order); accord 8 C.F.R. 1240.46(a); 8 U.S.C. § 1229a(b)(5)(A); Mondaca-Vega v. Lynch, 808 F.3d 413, 429 (9th Cir. 2015) ("The burden of proof required for clear, unequivocal, and convincing evidence is greater than the burden of proof required for clear and convincing evidence."); Ward v. Holder, 733 F.3d 601, 604–05 (6th Cir. 2013); United States v. Thompson-Riviere, 561 F.3d 345, 349 (4th Cir. 2009) ("To convict him of this offense, the government bore the burden of proving beyond a reasonable doubt that (inter alia) he is an 'alien,' which means he is 'not a citizen or national of the United States,'" (citations omitted) (emphasis added); Francis v. Gonzales, 442 F.3d 131, 138 (2d Cir. 2006); Matter of Pichardo, 21 I&N Dec. 330, 333 (BIA 1996) (en banc); Berenyi v. Immigration Dir., 385 U.S. 630, 636-37 (1967) ("When the Government seeks to strip a person of [U.S. nationality] already acquired, or deport a resident alien and send him from our shores, it carries the heavy burden of proving its case by 'clear, unequivocal, and convincing evidence.' . . . [T]hat status, once granted, cannot lightly be taken away...." (footnotes omitted)); Woodby v. INS, 385 U.S. 276, 285 (1966); Chaunt v. United States, 364 U.S. 350, 353 (1960).
  37. ↑ "Subtitle J—Provisions Relating to the Deportation of Aliens Who Commit Aggravated Felonies, Pub. L. 100-690, 102 Stat. 4469-79, § 7342". U.S. Congress. November 18, 1988. p. 289-90. Retrieved 2018-09-26. Section 101(a) (8 U.S.C. 1101(a)) is amended by adding at the end thereof the following new paragraph: '(43) The term 'aggravated felony' means murder, any drug trafficking crime as defined in section 924(c)(2) of title 18, United States Code, or any illicit trafficking in any firearms or destructive devices as defined in section 921 of such title, or any attempt or conspiracy to commit any such act, committed within the United States.'
  38. 1 2 Othi v. Holder, 734 F.3d 259, 264-65 (4th Cir. 2013) ("In 1996, Congress 'made major changes to immigration law' via IIRIRA. . . . These IIRIRA changes became effective on April 1, 1997.").
  39. ↑ Evangelista v. Ashcroft, 359 F.3d 145, 148 (2d Cir. 2004).
  40. 1 2 Ahmadi v. Ashcroft, et al., No. 03-249 (E.D. Pa. Feb. 19, 2003) ("Petitioner in this habeas corpus proceeding, entered the United States on September 30, 1982 as a refugee from his native Afghanistan. Two years later, the Immigration and Naturalization Service (the 'INS') adjusted Petitioner's status to that of a lawful permanent resident.... The INS timely appealed the Immigration Judge's decision to the Board of Immigration Appeals (the 'BIA').") (Baylson, District Judge); Ahmadi v. Att’y Gen., 659 F. App’x 72 (3d Cir. 2016) (Slip Opinion, pp.2, 4 n.1) (invoking statutorily nullified case law, the court dismissed an obvious illegal deportation case by asserting that it lacks jurisdiction to review a United States nationality claim under 8 U.S.C. § 1252(b)(5) solely due to 8 U.S.C. § 1252(b)(1)) (non-precedential); Ahmadi v. Sessions, No. 16-73974 (9th Cir. Apr. 25, 2017) (same; unpublished single-paragraph order); Ahmadi v. Sessions, No. 17-2672 (2d Cir. Feb. 22, 2018) (same; unpublished single-paragraph order); cf. United States v. Wong, 575 U.S. ___, ___, 135 S.Ct. 1625, 1632 (2015) ("In recent years, we have repeatedly held that procedural rules, including time bars, cabin a court's power only if Congress has clearly stated as much. Absent such a clear statement, ... courts should treat the restriction as nonjurisdictional.... And in applying that clear statement rule, we have made plain that most time bars are nonjurisdictional.") (citations, internal quotation marks, and brackets omitted) (emphasis added); see also Bibiano v. Lynch, 834 F.3d 966, 971 (9th Cir. 2016) ("Section 1252(b)(2) is a non-jurisdictional venue statute") (collecting cases) (emphasis added); Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th Cir. 2001) (en banc) (the court clarified "that § 1252(f)(2)'s standard for granting injunctive relief in removal proceedings trumps any contrary provision elsewhere in the law.").
  41. ↑ 8 U.S.C. § 1101(a)(13)(C); Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000) (en banc) ("Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (Supp. II 1996), an offense must be one 'referred to in section 212(a)(2)' of the Act, 8 U.S.C. § 1182(a)(2) (1994 & Supp. II 1996), to terminate the period of continuous residence or continuous physical presence required for cancellation of removal.").
  42. ↑ 8 U.S.C. § 1427 ("Requirements of naturalization"); see also 8 U.S.C. § 1101(f) ("For the purposes of this chapter—No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established is, or was— . . . .");
    • "Path to U.S. Citizenship". United States Citizenship and Immigration Services (USCIS). January 22, 2013. Retrieved 2018-09-30.
    • "How to Apply for U.S. Citizenship". www.usa.gov. September 4, 2018. Retrieved 2018-09-30.
  43. ↑ Morales-Santana v. Lynch, 804 F.3d 520 (2d Cir. 2015).
  44. ↑ 8 U.S.C. § 1101(a)(20) ("The term 'lawfully admitted for permanent residence' means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant ...."); see also 8 U.S.C. § 1101(a)(15) (defining the term "immigrant").
  45. ↑ Matter of Navas-Acosta, 23 I&N Dec. 586 (BIA 2003).
  46. ↑ "International Visitation to the United States: A Statistical Summary of U.S. Visitation" (PDF). U.S. Department of Commerce. 2015. p. 2. Retrieved 2018-09-30.
  47. ↑ "Destination USA: 75 million international guests visited in 2014". share.america.gov. Retrieved 2018-09-30.
  48. ↑ 8 U.S.C. § 1101(a)(19)
  49. ↑ 8 U.S.C. § 1101(f)(8) ("No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established is, or was ... (8) one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43))....") (emphasis added).
  50. ↑ "8 U.S.C. § 1427(d)-(e)". U.S. Congress. Cornell Law School. Retrieved 2018-09-27.
  51. ↑ Al-Sharif v. United States Citizenship and Immigration Services, 734 F.3d 207, 212 (3d Cir. 2013) (en banc).
  52. ↑ Mobin v. Taylor, 598 F.Supp.2d 777 (E.D. Va. 2009) (Ellis III, District Judge).
  53. ↑ Adiel Kaplan, ed. (July 9, 2018). "Miami grandma targeted as U.S. takes aim at naturalized immigrants with prior offenses". Miami Herald. Retrieved 2018-09-26.
  54. ↑ 8 U.S.C. § 1227(a)(2)(A)(vi)
  55. 1 2 Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018) ("Immigration judges may dismiss or terminate removal proceedings only under the circumstances expressly identified in the regulations, see 8 C.F.R. 1239.2(c), (f), or where the Department of Homeland Security fails to sustain the charges of removability against a respondent, see 8 C.F.R. 1240.12(c).").
  56. 1 2 Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998) (en banc).
  57. ↑ See also, generally 8 U.S.C. § 1229b; 8 U.S.C. § 1254a(e) ("Relation of period of temporary protected status to cancellation of removal"); Nguyen v. Sessions, ___ F.3d ___, ___, No. 15-72747, p.3 (9th Cir. Aug. 23, 2018); Lopez v. Sessions, ___ F.3d ___, ___-___, No. 15-72747, pp.10-14 (9th Cir. Aug. 22, 2018) (regarding INA § 212(c) relief); "I-191, Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA)". USCIS. Retrieved 2018-09-26.
  58. 1 2 Matter of G-G-S-, 26 I&N Dec. 339, 341, 347 n.6 (BIA 2014).
  59. ↑ Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018); see also 8 U.S.C. § 1252(a)(4) ("Claims under the United Nations Convention").
  60. ↑ See generally Toor v. Lynch, 789 F.3d 1055, 1064-65 (9th Cir. 2015) ("The regulatory departure bar [(8 C.F.R. 1003.2(d))] is invalid irrespective of the manner in which the movant departed the United States, as it conflicts with clear and unambiguous statutory text.") (collecting cases); see also Blandino-Medina v. Holder, 712 F.3d 1338, 1342 (9th Cir. 2013) ("An individual who has already been removed can satisfy the case-or-controversy requirement by raising a direct challenge to the removal order."); United States v. Charleswell, 456 F.3d 347, 351 (3d Cir. 2006) (same); Kamagate v. Ashcroft, 385 F.3d 144, 150 (2d Cir. 2004) (same); Zegarra-Gomez v. INS, 314 F.3d 1124, 1127 (9th Cir. 2003) (holding that because petitioner's inability to return to the United States for twenty years as a result of his removal was "a concrete disadvantage imposed as a matter of law, the fact of his deportation did not render the pending habeas petition moot").
  61. ↑ NLRB v. SW General, Inc., 580 U.S. ___, ___, 137 S.Ct. 929, 939 (2017) ("The ordinary meaning of 'notwithstanding' is 'in spite of,' or 'without prevention or obstruction from or by.' In statutes, the [notwithstanding any other provision of law] 'shows which provision prevails in the event of a clash.'"); In re JMC Telecom LLC, 416 B.R. 738, 743 (C.D. Cal. 2009) (explaining that "the phrase 'notwithstanding any other provision of law' expresses the legislative intent to override all contrary statutory and decisional law.") (internal quotation marks and brackets omitted) (emphasis added); see also In re Partida, 862 F.3d 909, 912 (9th Cir. 2017) ("That is the function and purpose of the 'notwithstanding' clause."); Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1083 (9th Cir. 2014) ("As a general matter, 'notwithstanding' clauses nullify conflicting provisions of law."); Jones v. United States, No. 08-645C, p.4-5 (Fed. Cl. Sep. 14, 2009); Kucana v. Holder, 558 U.S. 233, 238-39 n.1 (2010); Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993) (collecting court cases).
  62. ↑ Nken v. Holder, 556 U.S. 418, 443 (2009) (Justice Alito dissenting with Justice Thomas).
  63. ↑ Mintier, Tom (November 19, 2002). "One-way ticket for convicted Cambodians". CNN. Retrieved 2006-10-03.
  64. ↑ Schwartzapfel, Beth (May 14, 2005). "Fighting to Stay". AlterNet. Retrieved 2006-10-03.
  65. ↑ Men, Kimseng (April 6, 2018). "Cambodian-Born US Man Deported Back to Country He Doesn't Remember". Voice of America (VoA). Retrieved 2018-10-11.
  66. ↑ Montlake, Simon (February 11, 2003). "Cambodians deported home". BBC. Retrieved 2006-10-03.
  67. ↑ "Historical Data: Immigration and Customs Enforcement Removals". TRAC Reports, Inc. 2016. Retrieved 2018-10-11.
  68. ↑ See generally 8 U.S.C. § 1101(a)(13)(C)(v) (eff. 1996); see also Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000) (en banc).
  69. ↑ Sarah, Hoye (September 1, 2011). "Federal deportation review comes too late for some". CNN. Retrieved 2018-10-12.
  70. ↑ Cambodian Son. Studio Revolt. 2014. Event occurs at 2014. Retrieved 2014-04-27.
  71. ↑ https://www.pbs.org/independentlens/sentencedhome/film.html
  72. ↑ "Rally for Mout and Chally – Front & Champlost – 09.23.10". September 23, 2010. Retrieved 2018-10-12.
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