Cases & Deals

Vietnamese convict wins relief from deportation

Client(s) Amerasian applicant for asylum

On July 24, 2007, Jones Day associates Jeff McSorley (Washington) and Charlie Pugh (Cleveland) obtained relief under the United Nations' Convention Against Torture (CAT) for a Vietnamese man facing deportation as a result of felony criminal convictions.

Our client was born in Saigon, Vietnam during the Vietnam War to an American soldier and a Vietnamese woman. In 1992, he immigrated to the United States through a program created by the U.S. government to assist Amerasians (individuals of mixed American and Vietnamese ancestry). Removal proceedings were initiated against our client in Arlington (VA) Immigration Court while he was serving a prison sentence in Ohio for having been convicted of felony robbery and two counts of breaking and entering.

Prior to Jones Day's involvement, the Arlington Court found respondent removable for having committed (1) two crimes of moral turpitude; and (2) an aggravated felony. An issue arose as to whether respondent was a United States citizen after he mentioned that his biological parents may have been married around the time of his birth. Jones Day became involved in the case at the request of the Arlington Court in order to investigate respondent's claim and to brief the issue. After an extensive factual investigation, Jones Day was unable to uncover evidence sufficient to prove a claim for citizenship.

During the intervening period, venue was changed from the Arlington Immigration Court to the Cleveland Immigration Court. The Arlington Court's aggravated felony determination effectively barred respondent from seeking asylum or any other form of discretionary relief. Jones Day submitted extensive briefing to the Cleveland Court focusing on relief under CAT and requesting reconsideration of the Arlington Court's aggravated felony finding. Additionally, Jones Day located Dr. Alain Marsot, an Oxford-educated professor who taught at California State University-Long Beach for thirty-five years and focused on Southeast Asian politics and culture. He agreed to assist with the case in a pro bono capacity.

At the hearing, Dr. Marsot opined that respondent's status as a convicted criminal, an Amerasian and someone who has spent the last 15 years in the United States would cause Vietnamese officials to be highly suspicious. In Dr. Marsot's opinion, the respondent would almost certainly be detained upon arrival and likely tortured in an effort to determine whether the respondent was a spy or had subversive motives towards the Vietnamese government.

On February 12, 2008, the U.S. Department of Justice Board of Immigration Appeals upheld the relief we obtained for our client under the United Nation's Convention Against Torture ("CAT"). In a two-page decision, the Board of Immigration Appeals dismissed the Department of Homeland Security's appeal of the immigration court decision, finding that "[b]ased on the facts found by the Immigration Judge in this particular case, we find that the respondent established eligibility for deferral of removal under the CAT." With supervision from Laura Tuell Parcher, Jeffrey McSorley, who made opening arguments and handled the expert witness, and Charles Pugh, who conducted the direct examination and made closing arguments, handled the appellate briefing. The Department of Homeland Security decided against appealing this decision up to the U.S. Court of Appeals for the Sixth Circuit, effectively ending the litigation in this case and enabling our client to stay in the United States with his family.