Phi Nguyen Jess Davis Phi Nguyen (left) and Jess Davis, Atlanta

Phi Nguyen and Jess Davis, once adversaries on medical malpractice cases, are now suing the federal government together in an ambitious class action habeas petition challenging U.S. Immigration and Customs Enforcement’s indefinite detention of Vietnamese war refugees.

The refugees have been slated for deportation after living for decades in the United States. Vietnam, meanwhile, refuses to take them back.

Nguyen, the litigation director for Asian-Americans Advancing Justice’s Atlanta chapter, and Davis, a med-mal plaintiffs lawyer at Decatur firm Davis Adams, have recruited about 20 California lawyers to help with the massive case from AAAJ’s Los Angeles litigation team, its Asian Law Caucus in San Francisco and Reed Smith.

“Absent a legal challenge, people could be detained indefinitely,” Nguyen said. “We don’t know how long it could stretch out for.”

Under the Trump administration, ICE has moved to arrest and detain Vietnamese war refugees who are U.S. residents but are living under removal orders triggered by a criminal conviction.

ICE is unable to deport them because Vietnam, under a 2008 repatriation agreement with the United States, will not take back war refugees—defined as those who came to the United States to escape persecution before July 12, 1995, when the U.S.-Vietnam relationship started to normalize.

After President Donald Trump signed an executive order in January 2017 sharply expanding immigration enforcement, ICE began to make widespread arrests of immigrants from Vietnam, as well as Cambodia, Somalia, Iraq and other countries that historically do not repatriate their U.S. emigrants, according to the complaint. (Similar national class actions have been filed on behalf of those other countries’ populations.)

There are between 8,000 and 10,000 Vietnamese refugees with removal orders living under ICE supervision in the United States, according to ICE data cited in the complaint.

So far Nguyen, Davis and the other attorneys working on the case have identified 45 pre-1995 Vietnamese immigrants in ICE custody and under removal orders in 20 of ICE’s 111 detention facilities. Of those, at least 37 have been held for more than three months and 18 for more than six months, the lawyers said.

The suit, Hoang Trinh et al v. Homan et al, was filed Feb. 22 in the U.S. District Court for the Central District of California against ICE Deputy Director Thomas Homan; Department of Homeland Security Secretary Kirstjen Nielsen; Attorney General Jeff Sessions; ICE’s Los Angeles field office director, David Marin; Orange County, California, Sheriff Sandra Hutchens; and the warden of Adelanto ICE Processing Center.

Indefinite Detention

Nguyen said her team has discovered Vietnamese immigrants who’ve been in ICE facilities for as long as 11 months since the crackdown began.

“We want the government to release the people who are being held unlawfully so they can return to their lives,” Nguyen said.

ICE can’t detain immigrants for longer than three to six months, according to a U.S. Supreme Court decision cited in the complaint, Zadvydas v. Davis (2001). If the agency is unable to deport them in this period, it must release them under a supervision order. The only exception would be someone found to pose danger or flight risk.

ICE’s long-standing practice, according to the complaint, has been to release pre-1995 Vietnamese immigrants under a permanent supervision order that requires regular check-ins, since they can’t be deported back to Vietnam.

But in 2017, ICE “abruptly departed from past enforcement practices,” the complaint said.

Hoang Trinh, one of the named plaintiffs, has been incarcerated for seven months at ICE’s Theo Lacy Facility in Orange County after he was allegedly found in possession of a cannabis plant, according to the complaint.

Trinh, 41, immigrated to the United States from Vietnam with his parents and six sisters in 1980, at age 4. The family runs a neighborhood bakery in Orange County. His wife, two teenage children, parents and sisters are all U.S. citizens, and he has no family left in Vietnam.

ICE issued a removal order for Trinh in July—triggered by a 2015 drug conviction for which he served a year in prison—but he has yet to be interviewed by the Vietnamese government for repatriation.

ICE also has begun re-detaining Vietnamese refugees who’ve been living without incident in their communities for years under supervision orders, the complaint said.

Long Nguyen, another named plaintiff, came to the United States in 1987 at age 11 with his parents, and all obtained green cards.

He incurred a drug charge in 2006, at age 30. ICE detained him in 2011 as he returned from a trip abroad, issued a removal order and released him on a supervision order, under which he periodically reports to ICE.

Now 41, Nguyen lives in Charleston, South Carolina, with his wife, their daughter and three stepdaughters—all U.S. citizens. He and his wife work together in a nail salon.

On Oct. 19, Nguyen was pulled over while driving to work and arrested by ICE officers, then sent to Stewart Detention Center in Lumpkin, Georgia, where he remains, according to the suit.

‘Personal Issue’

Phi Nguyen started hearing of mass arrests and imprisonment of Vietnamese immigrants with outstanding removal orders last fall, just a few months after she left her job as a med-mal defense lawyer at Bendin Sumrall & Ladner to become AAAJ-Atlanta’s first-ever litigation director.

“I caught wind from other Vietnamese advocates and lawyers that a huge group of Vietnamese detainees were being sent to Stewart,” Nguyen said. Around that time, she added, AAAJ’s California affiliates filed a class action for Cambodian refugees similarly targeted for detention and deportation.

After two trips to Stewart, where she and other volunteers interviewed about 50 Vietnamese Americans, Nguyen called Davis, whom she knew from her years as a med-mal defense lawyer, to see if he knew any plaintiffs lawyers with class-action experience to co-counsel on a potential lawsuit. Davis immediately volunteered.

“I’m outraged by how the Trump administration is treating immigrants,” Davis said, adding that it’s a personal issue for him, since his wife is Korean and his children are Asian-American.

Neither had immigration law experience, and they had no idea how many Vietnamese-Americans were being detained or what their circumstances were.

“We were missing a lot of factual information to assess whether we had a viable lawsuit to file,” Nguyen said.

After a round of sweeps by ICE in October, Nguyen and Davis made the 150-mile drive from Atlanta to Stewart and traveled to ICE’s other Georgia detention centers in Ocilla and Folkston to meet with Vietnamese detainees, sign up clients and find class representatives for the suit.

“They shipped them from as far as California,” Nguyen said, explaining that ICE is using Stewart as a central point for the Vietnamese consulate to conduct interviews.

Vietnam has issued travel documents to only seven pre-1995 immigrants, according to the complaint, and it won’t accept any without an interview. Many of the refugees have been held for months without an interview, the complaint says.

In January, Nguyen and Davis went to California to meet with detainees at ICE prisons there and to enlist co-counsel from the other AAAJ chapters and Reed Smith who would be needed to litigate a case this large.

Davis said it’s been “life-changing to witness this injustice happening” from working on the case.

“Instead of being something on the news you can’t relate to,” he said, “you see a person who is like you, and, under different circumstances, could be you—and they’re locked up. They’ve been separated from their wives and children.”

Nguyen herself is the daughter of Vietnamese refugees. Her parents fled Vietnam for a Thai refugee camp in 1978 and arrived in the United States in 1979. They became citizens and raised Nguyen and her four sisters in Augusta.

While she speaks conversational Vietnamese, Nguyen said she’s had to learn a lot of new vocabulary to communicate with many of the detained immigrants. “I now know how to say ‘deportation order’ in Vietnamese, which was certainly not part of my vocabulary growing up,” she said.