The re­turned

De­spite doc­u­mented cases of tor­ture and abuse, im­mi­gra­tion court files ob­tained by South­east Asia Globe re­veal that the US is send­ing Cam­bo­dian asy­lum seek­ers back to face cer­tain per­se­cu­tion

Southeast Asia Globe - - Contents - BY JACK DAVIES

US court doc­u­ments tell the tale of Cam­bo­dian asy­lum seek­ers be­ing re­turned to harm at home

IN July 1992, Ly Sitha and her hus­band, Thavy Nhao, were vis­ited at their Ph­nom Penh home by a po­lice lieu­tenant named Sok Vi­bol as he sought shel­ter from the mon­soon rains.

It was a po­lit­i­cally fraught sum­mer. The United Na­tions had touched down in Cam­bo­dia just a few months ear­lier on its $1.6 bil­lion mis­sion to or­gan­ise the coun­try’s first elec­tions in decades, and all fac­tions were keen to en­sure that the out­come guar­an­teed them a share of the spoils. While Kh­mer Rouge hold­outs dom­i­nated much of the coun­try­side, in­cum­bent Prime Min­is­ter Hun Sen’s Cam­bo­dian Peo­ple’s Party (CPP) and Prince Norodom Ra­nariddh’s Func­in­pec were the cap­i­tal’s fron­trun­ners.

As rain pounded the streets out­side Sitha and Nhao’s home, talk turned to pol­i­tics. It tran­spired that Vi­bol, the po­lice­man, sup­ported the CPP, while the po­lit­i­cally in­volved cou­ple favoured Func­in­pec. The dis­agree­ment quickly es­ca­lated into an ar­gu­ment, and be­fore he stepped back into the street, Vi­bol warned the cou­ple they would be in dan­ger if they did not switch al­le­giances.

What fol­lowed from this fate­ful encounter reads like a Hol­ly­wood screen­play in the US im­mi­gra­tion ap­peals court doc­u­ments on ten Cam­bo­di­ans ob­tained by South­east Asia

Globe. The sto­ries told in these pages paint a pic­ture of the dan­gers faced by Cam­bo­di­ans who were sent back home by a US court sys­tem that in­sid­ers say is mis­guided and staffed by in­com­pe­tent and even fa­nat­i­cally anti-im­mi­grant judges.

For years, the cou­ple were the vic­tims of re­peated threats and vi­o­lence from the po­lice and govern­ment sup­port­ers. Years af­ter that first encounter with the of­fi­cer, Sitha would stand be­fore a US im­mi­gra­tion judge who’d ul­ti­mately send her back to a place where her hus­band’s corpse was found in a rice field.

The im­mi­gra­tion judge ruled that Sitha “had not shown a ba­sis for with­hold­ing of re­moval be­cause she had ex­pe­ri­enced only pe­ri­odic reprisals for her po­lit­i­cal ac­tiv­i­ties, not per­se­cu­tion or tor­ture”.

“I know ex­actly what this per­son is say­ing, it’s how you de­pict things,” Univer­sity of San Fran­cisco law pro­fes­sor Bill Ong Hing, who has rep­re­sented asy­lum seek­ers in count­less cases, told South­east Asia Globe. “What is ev­i­dence of per­se­cu­tion to you and me, to some­one else, is just a ran­dom act of vi­o­lence [to the court].”

Hing be­lieves that all too of­ten, Amer­i­can courts for­get that their asy­lum laws are hu­man­i­tar­ian doc­u­ments. He be­lieves that rather than seek to es­tab­lish where pro­tec­tion is needed, im­mi­gra­tion judges in­stead look for rea­sons not to pro­vide that pro­tec­tion – but Hing has had some suc­cesses fight­ing them.

In 1987, he forced the US Supreme Court to de­fine “well­founded fear” in the con­text of asy­lum cases. The term refers to whether ap­pli­cants have rea­son­able grounds to be­lieve they will be sub­jected to per­se­cu­tion if re­turned home.

Prior to his prece­dent-set­ting case, US courts had no writ­ten def­i­ni­tion of what con­sti­tuted well-founded fear of per­se­cu­tion, and as a re­sult would more of­ten than not take it to mean ap­pli­cants possessed near-ir­refutable proof that per­se­cu­tion was a cer­tainty if they re­turned home.

All too of­ten, Amer­i­can courts for­get that their asy­lum laws are hu­man­i­tar­ian doc­u­ments… Im­mi­gra­tion judges in­stead look for rea­sons not to pro­vide that pro­tec­tion

Hing suc­cess­fully ar­gued that since asy­lum cases re­volve around the ques­tion of whether the govern­ment has a duty to pro­tect ap­pli­cants, it was bet­ter to risk grant­ing asy­lum un­nec­es­sar­ily than ac­ci­den­tally send el­i­gi­ble ap­pli­cants to their death.

But even though the Supreme Court es­sen­tially adopted Hing’s po­si­tion in its 1987 rul­ing, that mes­sage is yet to trickle down to many of the coun­try’s im­mi­gra­tion judges more than three decades on, he said – some­thing he feels is re­flected in the cases un­earthed by South­east Asia Globe.

In each case, the ap­pli­cants sought pro­tec­tion un­der the Con­ven­tion Against Tor­ture. Each re­layed tes­ti­mony and ev­i­dence of ha­rass­ment, abuse and de­ten­tion at the hands of Cam­bo­dian law en­force­ment. And yet they were all de­nied pro­tec­tion, de­spite the fact that ev­ery US State De­part­ment hu­man rights re­port on Cam­bo­dia from 2006 to 2016 (the most re­cent avail­able) has noted an­nual in­ci­dents of tor­ture in cus­tody go­ing into dou­ble fig­ures. Ev­ery re­port in­cludes com­ments from hu­man rights or­gan­i­sa­tions that claim tor­ture and phys­i­cal mis­treat­ment as reg­u­larly used meth­ods of ex­tract­ing con­fes­sions from sus­pects.

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