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The Trump administration is reportedly pushing the government of Vietnam to allow the US to deport certain Vietnamese immigrants who have lived in the US since at least 1995.
The move, first reported by Charles Dunst and Krishnadev Calamur for the Atlantic, applies to Vietnamese immigrants who have already been ordered deported — in most cases, legal immigrant noncitizens who committed serious crimes — or are currently unauthorized. (In practice, given patterns of Vietnamese immigration and the structure of immigration law, any unauthorized immigrant who’s been here since 1995 is probably unauthorized because they committed a crime that made them ineligible for legal status.)
It is likely that fewer than 8,000 people will be immediately vulnerable to deportation because of the change.
This is part of a broader pattern for the Trump administration: Its policies are pushing people who have already put down roots in the US closer to deportation, with no attention to the role the US played in the circumstances that made them come here to begin with. (This is the same approach that Trump has taken in attempting to end Temporary Protected Status for hundreds of thousands of immigrants, and in trying to rescind protections of the Deferred Action for Childhood Arrivals program for unauthorized immigrants who came to the US as children.)
But that approach is consistent with the Trump administration’s priorities on immigration enforcement. The administration has made an effort to deport immigrants who’ve come into contact with law enforcement, and people with past deportation orders — even orders issued decades in the past. More broadly, the administration has tried to increase the pool of people who could be deported, and increase their fear that they will be, even if it doesn’t actually have the ability to go after and deport that many of them.
The US-Vietnam deportation agreement, explained
Until the mid-2000s, the odds that an unauthorized immigrant living in the US would actually get arrested and deported were relatively low. But once the Bush administration created the Department of Homeland Security (which contained Immigration and Customs Enforcement, or ICE), deportations of people who were already living in the US — some of whom had lived in the country for years or decades — grew substantially.
However, immigrants can’t be deported to countries that refuse to accept them. The US can give them a judicial order of deportation, but it can’t physically remove them. And while it can keep them in detention for a certain amount of time, it can’t do so indefinitely.
Until 2008, Vietnam was one of those countries — it refused to issue travel papers for would-be US deportees, preventing the US from sending them back. In 2008, though, the US and Vietnam signed a diplomatic agreement saying that immigrants who came to the US after 1995, violated US law, and had been ordered deported could be sent back to Vietnam. (Immigrants who arrived before 1995 weren’t affected because the US and Vietnam had not yet reestablished diplomatic relations.)
The agreement was set for five years, with automatic renewals every three years unless one party decided to renegotiate, and was renewed automatically in 2013.
But in 2017, the Trump administration declared that the agreement did not prevent it from deporting Vietnamese immigrants who had been convicted of criminal offenses. Vietnam accepted at least 11 deportees, and the US began detaining Vietnamese immigrants who had final deportation orders. Civil rights groups sued the administration, arguing that the Trump administration was violating Zadvydas, the Supreme Court decision that prevents the US from holding immigrants in detention indefinitely.
In August 2018, the Trump administration told the judge in the lawsuit that the policy of deporting Vietnamese was on hold again, because it had concluded the Vietnamese government wasn’t going to start accepting people imminently.
Meanwhile, though, the agreement is due for renewal in January. It appears the Trump administration may be attempting to renegotiate it; the Atlantic reported that “a State Department spokesperson confirmed that the Department of Homeland Security had met with representatives of the Vietnamese embassy in Washington, D.C., but declined to provide details of when the talks took place or what was discussed.”
In December, a spokesperson at the US Embassy in Vietnam told the Atlantic that the US had again reinterpreted the agreement. Not only does the Trump administration now claim that the agreement doesn’t protect people with criminal convictions, but it now believes it doesn’t protect anyone who came before 1995 who has a final order of deportation — which you can get simply for violating immigration law, i.e., for being in the US without papers.
If the Vietnamese government hasn’t agreed to this new interpretation, the Trump administration’s new stance doesn’t actually matter, because it still can’t deport people unilaterally. The implication of the Atlantic article, however, is that the government of Vietnam is yielding to Trump’s pressure. (This is the same dynamic the Trump administration is hoping to create with the new government of Mexico: because Trump cares so much about immigration, his administration is making immigration-related demands of allied governments and hoping they accede to those demands as a gesture of goodwill or in return for things they care about more.)
It’s not about going out and deporting people. It’s about making people deportable.
That puts two different categories of people at risk: noncitizens who lost their legal status (including green cards) because they were convicted of sufficiently serious crimes, and unauthorized immigrants who had been here since 1995 but had never gotten permanent legal status or citizenship.
For the most part, the second group probably also consists of people who’d committed crimes; immigration lawyer David Kubat pointed out that most pre-1995 immigrants were refugees, and refugees have a fairly easy path to green cards and citizenship. (While 8,000 Vietnamese citizens have been issued orders of deportation since 1989, most of those were issued after 1995 — meaning the immigrants might have been post-1995 arrivals.)
It does not affect people who currently have legal status in the US, unless they lose it. It does not affect naturalized citizens at all.
There’s also a difference between being eligible for deportation and actually being deported. As a rule, unauthorized immigrants in the US are subject to deportation — exceptions like the one carved out for pre-1995 Vietnamese arrivals are extremely rare. But the government has to find an immigrant, apprehend her, and get an immigration judge to order her deported before it can actually deport her.
Because most of the Vietnamese immigrants probably do already have final deportation orders, it will be easier for the government to track them down. (Immigrants with old criminal convictions and past deportation orders were an early enforcement priority for the Trump administration, which ramped up arrests of them in 2017.)
But it’s still going to have to exert energy and resources to do that — and it may not be able to, or may decide it’s easier to simply wait until the next time a Vietnamese immigrant with a deportation order comes to the attention of local law enforcement. If there are any unauthorized Vietnamese immigrants who have lived in the US for 23 years and don’t have final deportation orders (but don’t have legal status either), the danger for them is no more imminent than it is for any of the 11 million or so other unauthorized immigrants in the US.
Which is to say, there is a danger — one roughly comparable to the level of danger for these immigrants in President Obama’s first term, when ICE had broad authority to arrest and deport unauthorized immigrants without criminal records. The Trump administration hasn’t yet increased arrests or deportations beyond circa-2011 levels.
But while Obama often emphasized that some immigrants shouldn’t feel they were at risk of deportation — even when in practice, they were getting deported — Trump administration officials have consistently made it clear that any fear immigrants have of being arrested and deported is justified.
This is the most consistent pattern of the Trump administration’s deportation agenda. They don’t have the resources to deport everyone. They have instead acted to expand the pool of those who are vulnerable to deportation, and live under its threat.
