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
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.