The Trump administration claimed that a new deal with Vietnam allowed it to deport immigrants, including war refugees, superseding a 10-year-old agreement between the two countries that barred removal of Vietnamese people who have been living in the US for decades. But attorneys representing the Vietnamese immigrants allege that new agreement was never reached, and that the government lied in court to try to push through the refugees' deportations.
It's the second time in a month that a high-ranking official with the Department of Homeland Security has been accused of lying in a federal case involving the Trump administration's effort to deport war refugees living in the US. Attorneys for the Vietnamese immigrants are now considering asking a federal judge to impose sanctions on the Trump administration for its claims.
"They have provided no proof," Chris Lapinig, an attorney with Asian Americans Advancing Justice, which is representing the refugees, told BuzzFeed News. "There is some reason to doubt the truthfulness of the [government's] declarations."
The government's lawyers have since walked back the claim that a new agreement has been reached with Vietnam, and admitted in court that the country won't accept deported immigrants who arrived in the US before 1995.
Despite this admission, however, immigration officials are undeterred from their goal of removing Vietnamese immigrants. DHS officials told BuzzFeed News that despite Vietnam's current stance, the US will try to follow through on its deportation efforts.
"We will indeed continue to seek to remove the pre-1995 population," a spokesperson with the department told BuzzFeed News.
The decision highlights the broad scope of the Trump administration's aggressive immigration enforcement strategies, and show how its hardline policies extend far beyond the southern border.
While the president continues to publicly focus on the alleged threat posed by a caravan of Central American migrants, his administration has been waging a much quieter fight to deport Southeast Asian immigrants who have lived in the US for decades, many of whom arrived after fleeing bloody wars and brutal communist regimes in Vietnam, Laos, and Cambodia.
Citing a 2008 agreement reached with the US regarding refugees, Vietnam has said that it will not take back immigrants who arrived in the US before July 1995. Since mid-2017, however, the Trump administration has been targeting Southeast Asian immigrants in the US, looking to deport those who have lived in the US for decades but have been convicted of a crime.
"This administration has been trying to exert diplomatic pressure and, in essence, bully these recalcitrant countries to accept deportees," Lapinig said. Many of the Vietnamese refugees facing deportation fled to the US as war refugees and have not stepped foot in Vietnam since they were children.
Civil rights attorneys sued the administration in February after immigration officials kept dozens of Vietnamese immigrants in detention centers for months while arguing that a new agreement between the US and Vietnam would allow for their deportation.
That new agreement was cited in a July affidavit from Michael Bernacke, acting deputy assistant director for the removal management division of the Department of Homeland Security.
"Under that understanding, Vietnam had begun to consider request for travel documents for pre-1994 Vietnamese immigrants, despite the 2008 agreement," US District Judge Cormac J. Carney wrote in a decision granting class certification for the suit in October.
Three months later, Carney wrote, attorneys for the US backed away from their claim that a new agreement existed that would allow the deportations to go through.
"Now, months later, the Government reverses its position," the judge wrote. Instead, the government claimed it had reached another agreement with Vietnam that did not allow the deportations after all.
Bernacke was also accused of making false statements to a federal court in a separate case last month, after claiming a flight that was scheduled to deport Iraqi immigrants in June 2017 had been canceled because of a court order. US District Judge Mark Goldsmith said Bernacke's claim was "demonstrably false" since it was in fact the Iraqi prime minister who refused to approve the chartered flight.
Bernacke's statements in that case — as well as the fact that US officials have provided no proof of a new agreement with Vietnam in court or to reporters — has led attorneys for the Vietnamese refugees to suspect that a new agreement with Vietnam did not exist, Lapinig said.
"The government has been pretty uncooperative," he said.
DHS officials referred questions about Bernacke's claims regarding a new agreement with Vietnam to the US State Department.
A State Department spokesman did not answer questions about Bernacke's affidavit or his claims of a new agreement, but said the two countries "continue to discuss their respective legal positions regarding Vietnamese citizens who arrived in the United States before July 12, 1995."
State Department officials confirmed to BuzzFeed News that US and officials from the Vietnamese Embassy in DC met this week, but declined to comment on the details of the diplomatic conversations.
"The United States government's position is that every country has an international legal obligation to accept all of its nationals whom another country seeks to remove, expel, or deport," a State Department spokesperson said. "The Administration takes seriously its responsibility to ensure that US laws are respected within borders. This means ensuring that foreign governments, including our close friends and partners like Vietnam, abide by their international obligation to accept the return of their nationals who have violated our laws."
News that the Trump administration is trying to negotiate changes to the 2008 agreement with Vietnam, and is looking to move forward with the deportations of Vietnamese immigrants, was first reported by the Atlantic Wednesday.
The government's claim to have reached a new agreement to deport pre-1995 immigrants, and rumors that the US and Vietnam are now trying to make changes to the 2008 agreement, suggest Bernacke's initial claim was "patently false," Lapinig said.
Attorneys estimate the decision in the case could impact more than 8,500 people vulnerable to deportation. According to ICE figures provided in court, 11 people who arrived in the US before 1995 have been deported since July 2017.
Yet of the 86 requests for deportation that the US submitted to Vietnam this year, only one was approved.
"I'm American and I speak English better than I speak Vietnamese," Tung Nguyen, who arrived in the US at age 15 with his parents fleeing the country's communist regime, and who was facing deportation, told BuzzFeed News.
At the age of 16, he was sentenced to 25 years to life in prison for taking part in a robbery and murder. Nguyen did not commit the murder but was convicted for his role in the crime. He served 18 years of the sentence and did not know he was facing the threat of deportation until he was released.
Having left Vietnam with his parents as a child, he now faces the possibility of being deported to a country he cannot remember.
"We were kids and [my parents] chose to leave Vietnam and they brought us kids," he said. "It was forced migration for us."
Since his conviction, Nguyen, who is now 43, has tried to turn his life around. He was commended for risking his life to save civilians during a prison riot on Feb. 26, 2006, in San Quentin. He's publicly advocated for minors in the justice system and helped found the Asian and Pacific Islanders Re-Entry program in Orange County, California, to provide training and transition services for inmates exiting the prison system.
He's married now, but said he's put off having children or setting down roots because of the fear of deportation hanging over his head.
"The day you receive your final removal order, you can have kids, you can marry, you can have a business, but you leave it all behind," he said. "It's not just me, it's thousands of Vietnamese under the same situation."
Nguyen looked at all his options, including a long-shot appeal for a pardon from California Gov. Jerry Brown, which would erase the conviction that the government cites as the reason for his deportation order.
Brown granted Nguyen's request the day before Thanksgiving, noting that the pardon might help Nguyen stay in the country.
Nguyen's concern now is for other immigrants like him, who have spent their entire lives in the US and who, after serving sentences for crimes committed here, now face the threat of deportation to countries they have never really known.
"I'm an American," he said. "I grew up in a prison but I'm American."