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Ruling protecting Cambodian refugees might benefit others, lawyers say

A federal court ruling could have broader implications for other groups facing final orders of removal, one expert says.
Posda Tuot speaks about his cousin, Nak Kim Chhoeun, during a press conference announcing a lawsuit about ICE detentions of Cambodian Americans Wednesday.
Posda Tuot speaks about his cousin, Nak Kim Chhoeun, during a press conference announcing a lawsuit about ICE detentions of Cambodian Americans Wednesday.Agnes Constante / NBC News

A recent federal court ruling offering protections to some Cambodian refugees facing deportation could have a broader impact on other groups in similar situations, legal experts and immigrant advocates say.

A court in California last week issued what advocates call a “groundbreaking” decision that protects Cambodian refugees from final orders of removal in unannounced immigration raids.

Immigration and Customs Enforcement has conducted arrests of individuals with old final orders of removal without warning, Jenny Zhao, a staff attorney at Asian Americans Advancing Justice – Asian Law Caucus, said. With the ruling, Chhoeun V. Marin, the U.S. government is now required to issue a 14-day written notice before detaining Cambodian nationals with final orders of removal.

Zhao said that the ruling applies only to Cambodians with deportation orders, but that other immigrants facing deportation for old removal orders could cite the decision if they find themselves in a similar lawsuit.

“I think a lot of the reasoning in the decision around why people who have an old deportation order and have been living peacefully in their communities shouldn’t be just plucked out of their lives one day without warning could apply to other communities as well,” she said.

Last week's decision, in the U.S. District Court for the Central District of California, comes more than two years after the Asian Law Caucus, along with Asian Americans Advancing Justice-Los Angeles and Sidley Austin LLP, filed a class action lawsuit in 2017 challenging the detentions of Cambodian nationals.

ICE in October 2017 began carrying out unannounced raids and detaining Cambodian nationals with final orders of removal, many of which were based on decades-old convictions for offenses they committed as teenagers, according to court documents. Plaintiffs fled Cambodia as refugees in the 1970s to escape the Khmer Rouge, court documents noted.

The agency's practice of conducting immigration arrests without notice, along with the large-scale raids that have escalated in the Cambodian community over the past couple of years, became a source of stress and anxiety for many.

“The court has really acknowledged that the way ICE has been conducting arrests on Cambodian community members is unconstitutional and has caused enormous harm to that community over the years,” Zhao said.

In January 2019, the court issued a temporary restraining order requiring the government to provide written notice 14 days before detention. The order became permanent with the court ruling last week.

“What it really means is people no longer have to live in fear that every day could be the last day that they get to say goodbye to their families and they could just be arrested without notice and shipped off to some detention facility across the country,” Zhao said.

She added that the window of time also provides class members with the opportunity to find a lawyer and explore their legal options, and to get their affairs in order before detention.

According to court documents, the government argued that providing advance notice before detention interferes with the “prompt execution of removal orders,” creates a burden on ICE officers who have to gather information and prepare the notices, and results in high rates of disappearances. The government said that nearly half of class members did not show up for travel document interviews when they were given advanced notice of detention.

The court, however, said that none of the arguments were persuasive.

In the decision, the court said that the government had waited up to decades to execute removal orders and could afford 14 additional days to execute those orders, and that there is no evidence that written notices create a significant burden on the government. The court also said that the government has not provided reliable evidence to support the claim of high disappearances and that the burdens associated with disappearances are minimal.

ICE declined to comment on the case.

Nak Kim Chhoeun, a plaintiff named in the lawsuit who was detained without notice in October 2017, said the court's decision has provided him with a sense of security.

“I’d be afraid to walk outside my house right now and afraid that ICE could walk up to me and detain me prior to the ruling,” he said. “Now I can actually go out and say, 'You know what, if they were to detain me, they’re going to violate the judge’s order because they didn’t give me a two-week notice.'”

Zhao said that the court's ruling provides an important baseline protection, but that the fight is not over. She expects the government to appeal the decision and noted that Cambodians are still facing deportation. The government in January deported 25 Cambodian nationals in its first round of repatriations this year. And last month, the Asian Law Caucus issued an alert that ICE had begun arresting Cambodians for deportation.

In fiscal year 2020, as of Feb. 29, ICE has removed 30 Cambodian nationals, 25 of whom were convicted criminals, an ICE spokesperson said in an email.

As of Feb. 29, there were 1,769 Cambodian nationals with a final order of removal, 1,293 of whom are convicted criminals or have pending criminal charges, according to ICE.

“We feel that in the long term, ICE should stop detaining and deporting people altogether, especially from this community because these policies are causing so much harm to refugee families,” she said.

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