No. 00-38 

In the Supreme Court of the United States 

JANET RENO, ET AL., PETITIONERS 

v. 

KIM HO MA 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

JOINT APPENDIX 

JAY W. STANSELL 

Assistant Federal Public 

Defender 
Western District of 

Washington 
1111 Third Avenue 
Suite 1100 
Seattle, Washington 98101 
(206) 553-1100 
Counsel of Record 
for Respondent 
SETH P. WAXMAN 

Solicitor General 
Department of Justice 
Washington, D.C. 20530 
(202) 514–2217 
Counsel of Record 
for Petitioner 

PETITION FOR WRIT OF CERTIORARI FILED JULY 5, 2000 
CERTIORARI GRANTED OCTOBER 10, 2000 

TABLE OF CONTENTS 

Page 

Relevant docket entries from the United States 

District Court for the Western District of 
Washington (Seattle), Civil No. 99-CV-151 ............ 

1 
Relevant docket entries from the United States of 

Court Appeals for the Ninth Circuit, 
No. 99-35976 .................................................................. 

11 
Order of the Immigration Judge re removal 
proceedings (dated September 12, 1997) (C.A. 
Ex. Rec. 221-227) ......................................................... 
26 

Order of the Immigration Judge re bond 
redetermination (dated October 7, 1997) (C.A. 
Ex. Rec. 242-251) ......................................................... 
33 

Order of the Immigration Judge re bond 
redetermination (dated December 31, 1997) 
(C.A. Ex. Rec. 194-199) ............................................... 
38 

Decision of the Board of Immigration Appeals 
(dated October 26, 1998 ) (C.A. Ex. Rec. 162- 
168) .................................................................................. 44 

Notification of Review of Detention Status (dated 

April 13, 1999) (C.A. Ex. Rec. 147) ........................... 
57 

Amended Petition for Writ of Habeas Corpus by 
a Person in Federal Custody Pursuant to 
28 U.S.C. § 2241 (filed April 23, 1999) (C.A. Ex. 
Rec. 60-64) ..................................................................... 
59 

Letter from George L. Morones to Consulate 

General of Cambodia (dated May 5, 1999) 
(C.A. Ex. Rec. 123) ...................................................... 

66 
Declaration of Patrick O’Reilly (dated May 20, 
1999) (C.A. Ex. Rec. 126-128) .................................... 
68 

Declaration of Patrick O’Reilly (dated Nov. 18, 1998) 
(C.A. Supp. Ex. Rec. 483-485) .................................... 71 

(I) 

II 

Table of Contents—Continued: 
Page 

Excerpts from deposition of Patrick O’Reilly (dated 

July 12, 1999) (C.A. Supp. Ex. Rec. 379, 385-412) .. 

74 

Declaration of James G. Hergen (dated July 21, 1999) 
(C.A. Supp. Ex. Rec. 287-290) .................................... 
101 

Letter from Nou Hak, First Secretary and Counsul, 

Kingdom of Cambodia to Jay Stansell (dated July 
27, 1999) (C.A. Supp. Ex. Rec. 309) .......................... 
107 

Affidavit of Nuala Ni Mhuircheartaigh (dated Sept. 
9, 1999) (C.A. Supp. Ex. Rec. 305-307) ..................... 
108 

Declaration of James G. Hergen (dated September 
15, 1999 ) (C.A. Ex. Rec. 129-132) ............................. 
112 

Order of Supervision (dated October 25, 1999) 
(C.A. Ex. Rec. 156-157) ............................................... 
119 

Supplemental declaration of James G. Hergen (dated 

Nov. 17, 1999) (Resp. C.A. Br., App. I) .................... 
125 

Supplemental declaration of James G. Hergen (dated 

Nov. 26, 1999) (Pet. C.A. Br., Addendum) .............. 
129 

Affidavit of Heather Lynn Winslow (dated Dec. 2, 
1999) (Resp. C.A. Br. App. H) ................................... 
132 

Supplemental declaration of James G. Hergen (dated 

Mar. 23, 2000) (Pet. Mot. to Expedite Rehearing 
Pet., Attachment 1) ..................................................... 
135 

Order of United States Supreme Court granting 
petition for writ of certiorari ..................................... 139 

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 
(SEATTLE) 

No. 99-CV-151 

KIM HO MA, PETITIONER 

v. 

U.S. IMMIGRATION AND NATURALIZATION SERVICE, 
ET AL., RESPONDENTS 

DOCKET ENTRIES 

_________________________________________________ 

DOCKET 
DATE NUMBER ENTRY_________________________________________________ 

2/2/99 1 
PETITION FOR 2241 WRIT OF 

HABEAS CORPUS by peti- 
tioner Kim Ho Ma Receipt No. 
256020 (ss) [Entry date 
02/08/99] 

* * * * * 

(1) 

2 

_________________________________________________ 

DOCKET 
DATE NUMBER ENTRY_________________________________________________ 

4/22/99 10 
ORDER ON LEAD CASES & 

STAY OF RELATED CASES 

by Judge Coughenour, Judge 
Rothstein, Judge Zilly, Judge 
Lasnik & Judge Dwyer. This 
case is designated as a lead 
case. The Order of Reference 
is hereby vacated. Briefing 
Schedule: Lead case petitioners 
briefs due by 4/30/99 (50 pg. 
max.); Non-lead case petitioners 
briefs due by 5/10/99 (25 pg. 
max); Respondents briefs due 
by 5/21/99 (50 pg. max); Lead 
case petitioners reply brief due 
by 5/28/99 (25 pg. max); Cnsl to 
file an orig. plus 9 copies (1 for 
each file and 1 for each District 
Judge); Oral arg. is scheduled 
for 6/17/99 at 1:30 before a 
Panel of Judge Coughenour, 
Judge Rothstein, Judge Zilly, 
Judge Lasnik and Judge 
Dwyer. All non-lead cases are 
stayed, except the court will 
rule on ifp motions, appt. of cnsl 
motions, service of process and 
any dismissal orders. Case 
reassigned to Judge Robert S. 
Lasnik, , (cc: counsel, Judge) (sl) 
[Entry date 04/23/99] 

* * * * * 

3 

________________________________________________ 

DOCKET 
DATE NUMBER ENTRY________________________________________________ 

4/30/99 16 OPENING BRIEF OF PETI- 
TIONERS IN SUPPORT 
OF PETITIONS FOR WRITS 
OF HABEAS CORPUS/MEMO- 
RANDUM by petitioner in sup- 
port re: habeas corpus petition 
[1-1] (vk) [Entry date 05/06/99] 

* * * * * 

5/6/99 18 CERTIFIED ADMINISTRA- 
TIVE RECORD by respondent 
INS (FILED IN EXPANDO) 

(gm) [Entry date 05/10/99] 

* * * * * 

5/14/99 21 DECLARATION of Jay Ashri 

Srikantiah re motion for leave 
to participate as amici curiae by 

ACLU-IRP [20-1] (vk) [Entry 
date 05/18/99 

5/14/99 22 

MEMORANDUM in support of 

motion for leave to participate 
as amici curiae by ACLU-IRP 

[20-1] (vk) [Entry date 05/18/99] 

* * * * * 

4 

________________________________________________ 

DOCKET 
DATE NUMBER ENTRY________________________________________________ 

5/18/99 24 ORDER GRANTING MOTION 

TO AMEND PETITION by 
Judge Robert S. Lasnik: 

GRANTING motion to amend 
petition [12-1] (cc: counsel, 
Judge) (vk) [Entry date 
05/19/99] 

* * * * * 

5/18/99 27 AMENDED PETITION FOR 

WRIT OF 2241 HABEAS 
CORPUS by petitioner Kim Ho 
Ma (rs) [Entry date 05/24/99] 

5/21/99 25 
ORDER by Chief Judge John 

C. Coughenour GRANTING mo- 
tion for leave to participate as 
amici curiae by ACLU-IRP [20- 

1] and petitioners’ motion for 
permission to file a corrected 
copy of their opening brief (cc: 
counsel, Judge, ACLU) (vk) 

5/21/99 26 AMENDED OPENING BRIEF 

OF PETITIONERS IN SUP- 
PORT OF PETITIONS FOR 
WRITS OF HABEAS CORPUS 

[1-1] (vk) 

5 

________________________________________________ 

DOCKET 
DATE NUMBER ENTRY________________________________________________ 

5/21/99 28 RESPONSE by respondent to 
amended habeas corpus petition 
[27-1] (rs) [Entry date 05/24/99] 

5/21/99 29 INS EXHIBITS to response 
[28-1] re amended petition (rs) 
[Entry date 05/24/99] 

5/28/99 30 
REPLY BRIEF by petitioner 

Kim Ho Ma to habeas corpus 
petition [27-1] (rs) [Entry date 
06/01/99] 

5/28/99 31 EXHIBITS by petitioner in 
support of reply brief [30-1] (rs) 
[Entry date 06/01/99] 

* * * * * 

6/17/99 37 PETITIONERS’ SUPPLEMEN- 
TAL EXHIBITS (vk) 

* * * * * 

6/17/99 40 
EXHIBIT “L” by INS (vk) 

[Entry date 06/23/99] 

6 

________________________________________________ 

DOCKET 
DATE NUMBER ENTRY________________________________________________ 

* * * * * 

6/18/99 38 TRANSCRIPT of proceedings 
for the following date(s): 6/17/99 
CR initials: L Kelly (kn) 

* * * * * 

7/9/99 44 

JOINT ORDER by All District 

Judges: In the orders that 
follow, we individually apply 
the due process framework in 
the lead cases to determine 
whether continued detention 
violates the petitioner’s right to 
substantive due process. The 
court shall provide for ex- 
pedited review of the remaining 
petitions that have been stayed 
pursuant to the 4/22 and 6/29 
orders. To that end, the govt is 
directed to file a status report 
and recommendation in each of 
the stayed cases within 20 days 
of entry of this order. Counsel 
for each petitioner may file a 
response in the respective case 
within 10 days. Each judge 

7 

________________________________________________ 

DOCKET 
DATE NUMBER ENTRY________________________________________________ 

shall then consider the petitions 
pending before him/her. (cc: 
counsel, Judge) (rs) 

7/13/9 45 ORDER SETTING HEARING 

by Judge Robert S. Lasnik: The 
Court will schedule a hearing in 
this matter. The parties are 
directed to contact this Court’s 
deputy clerk to schedule such a 
hearing. (cc: counsel, Judge) 
(gm) 

* * * * * 

9/8/99 48 STATUS REPORT AND RE- 
COMMENDATION by respon- 
dents (vk) 

9/8/99 49 RESPONDENTS’ EXHIBITS re: 
status memorandum [48-1] (vk) 

* * * * * 

9/9/99 51 RESPONSE by petitioner re: 
respondents’ status memo- 
randum [48-1] (FILED IN 
EXPANDO) (vk) [Entry date 
09/13/99] 

8 

________________________________________________ 

DOCKET 
DATE NUMBER ENTRY________________________________________________ 

9/29/99 52 

ORDER by Judge Robert S. 

Lasnik GRANTING petitioner’s 
petition for writ of habeas 
corpus and respondents are 
ordered to release Kim Ho Ma 
subject to appropriate condi- 
tions [0-0]case termed (cc: 
counsel, Judge) (vk) 

9/29/99 53 

ORDER by Judge Robert S. 

Lasnik staying order granting 
petitioner the writ of habeas 
corpus pending further order of 
the court (cc: counsel, Judge, 
INS) (vk) 

9/29/99 54 MOTION by respondents for 
stay pending appeal (vk) [Entry 
date 09/30/99] 

9/29/99 55 RESPONSE by petitioner in 
opposition to respondents’ mo- 
tion for stay pending appeal [54- 

1] (vk) [Entry date 09/30/99] 

9/30/99 56 

REPLY by respondent to peti- 
tioner’s opposition to respon- 
dent’s motion for stay pending 
appeal [55-1] (vk) 

9 

________________________________________________ 

DOCKET 
DATE NUMBER ENTRY________________________________________________ 

9/30/99 57 

ORDER by Judge Robert S. 

Lasnik: The Ct entered an 
order granting petitioner the 
writ of habeas corpus, & the 
govt requested a stay pending 
appeal. The Ct finds a stay is 
not warranted. The govt may 
have up to 7 days w/in which to 
request a stay from the Ct of 
Appeals before this Ct’s order 
must be executed. (cc: counsel, 
Judge, INS) (gm) 

10/6/99 58 

NOTICE OF APPEAL by re- 
spondent INS from Dist. Court 
decision [44-1, 57] (cc: CCA, 
RLS, counsel) (lb) 

* * * * * 

10/12/99 59 ORDER (CCA 99-35976) The 
court, on its own motion, stays 
the district court’s order re- 
leasing petitioner, Kim Ho Ma, 
pending full consideration of the 
emergency motion for stay 
pending appeal filed on 10/6/99. 
(lb) 

10 

________________________________________________ 

DOCKET 
DATE NUMBER ENTRY________________________________________________ 

10/25/99 60 

ORDER (CCA 99-35976) Appel- 
lant’s emergency motion for 
stay pending appeal is denied. 
Petitioner shall be released 
subject to appropriate condi- 
tions before 5:00pm on Monday, 
10/25/99. (lb) 

11/3/99 61 

NOTICE of change of peti- 
tioner’s custody status by re- 
spondent INS (vk) [Entry date 
11/04/99] [Edit date 11/08/99] 

11/5/99 62 RESPONSE by petitioner re: 
respondent’s notice of change of 
custody status [61-1] (vk) 
[Entry date 11/08/99] 

11/5/99 63 

AMENDED NOTICE by respon- 
dent INS of change of peti- 
tioner’s custody status, and con- 
solidation and expedition of ap- 
peals (vk) [Entry date 11/08/99] 

* * * * * 

11 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 99-35976 

KIM HO MA, PETITIONER-APPELLEE 

v. 

IMMIGRATION AND NATURALIZATION SERVICE; 
JANET RENO, ATTORNEY GENERAL; 
RICHARD C. SMITH, DISTRICT DIRECTOR, 
RESPONDENTS-APPELLANTS 

DOCKET ENTRIES 

_________________________________________________ 

DATE ENTRY 

_________________________________________________ 

* * * * * 

10/6/99 Filed Appellant INS, Appellant Janet 

Reno, Appellant Richard C. Smith emer- 
gency motion to stay further action. [99- 
35976] served on 10/6/99 (MOATT) (sf) 
[99-35976] 

12 

_________________________________________________ 

DATE ENTRY 

_________________________________________________ 

10/7/99 Filed Appellant INS, Appellant Janet 

Reno, Appellant Richard C. Smith emer- 
gency motion for a temporary stay pend- 
ing this court’s disposition of the emer- 
gency motion for a stay pending appeal; ; 
served on 10/6/99 (MOATT) (ft) [99-35976] 

10/7/99 Filed order MOATT (J. C. WALLACE) the 
ct, on its own mtn, STAYS the DC’s order 
releasing petitioner, Kim Ho Ma, pending 
full consideration of the emergency mtn 
for stay pending appeal filed on 10/6/99. 
(serve only per MOATT) [99-35976] (rc) 
[99-35976] 

10/8/99 Filed Appellee Kim Ho Ma response in 
opposition to emergency motion staying 
further action [3768342-1] served on 
10/7/99 (MOATT) [99-35976] (ft) [99-35976] 

* * * * * 

10/22/99 Filed order (J.C. WALLACE, Edward 

LEAVY,): Aplts’ emergency motion for a 
stay pending appeal is denied. Petitioner 
shall be released subject to appropriate 
conditions before 5:00 p.m. on Monday 
10/25/99. (faxed to panel by N. Tompkins) 
[99-35976] (ft) [99-35976] 

13 

_________________________________________________ 

DATE ENTRY 

_________________________________________________ 

* * * * * 

10/25/99 Filed order (James R. Browning, J. C. 

WALLACE,): Respondent’s emerg motion 
to stay petitioner’s release pending the 
filing and consideration of an emerg 
motion for stay in the U.S. Sup Ct is 
denied. (phoned by N.Tompkins) [99- 
35976] (ft) [99-35976] 

10/25/99 Filed Appellant INS in 99-35976, Appel- 
lant Janet Reno in 99-35976, Appellant 
Richard C. Smith in 99-35976 emergency 
motion for a stay of the court’s release 
order pending the filing of an emergency 
stay motion with the U.S. Sup Court and 
pending the circuit Justice’s consideration 
of that motion; served on 10/25/99 
(MOATT) (ft) [99-35976] 

* * * * * 

11/29/99 Filed original and 15 copies Appellant 

INS in 99-35976, Appellant Janet Reno in 
99-35976, Appellant Richard C. Smith in 
99-35976 opening brief (Informal: n) 53 
pages and five excerpts of record in 2 
volumes; served on 11/26/99 [99-35976] (ft) 
[99-35976] 

14 

_________________________________________________ 

DATE ENTRY 

_________________________________________________ 

* * * * * 

12/30/99 Filed Law Professors in 99-35976’s motion 
to become amicus curiae in support of 
Aple. (PANEL); served on 12/30/99 [99- 
35976] (sf) [99-35976] 

12/30/99 Received Amicus Law Professors in 99- 
35976’s brief in 15 copies of 24 pages; 
deficient: motion pending to become ami- 
cus; served on NO POS. (PANEL) [99- 
35976] (sf) [99-35976] 

1/3/00 Received orig. 15 copies Kim Ho Ma in 99- 
35976’s brief of 76 pages; served on 
12/27/99 deficient: oversized, motion & 
brief to PANEL [99-35976] (ft) [99-35976] 

1/3/00 Filed Kim Ho Ma in 99-35976 motion to 
file oversized brief [99-35976] served on 
12/27/99 [3821219] (brief & motion to 
panel) (ft) [99-35976] 

15 

_________________________________________________ 

DATE ENTRY 

_________________________________________________ 

1/3/00 Received Amicus National Association in 
99-35976’s brief in 15 copies of 29 pages; 
deficient: motion pending to become 
amicus; served on 12/30/99 Notified coun- 
sel. (PANEL) [99-35976] response to brief 
deficiency notice due 1/18/00; (sf) [99- 
35976] 

1/3/00 Filed Amicus National Association in 99- 
35976’s motion to become amicus curiae. 
(PANEL) [99-35976] served on 12/30/99 
(sf) [99-35976] 

1/3/00 Filed Human Rights Watch’s motion to 
become amicus curiae. (PANEL); served 
on 12/30/99 [99-35976] (sf) [99-35976] 

1/3/00 Received Amicus Human Rights Watch in 
99-35976’s brief in 15 copies of 29 pages; 
deficient: motion pending to become 
amicus; served on 12/30/99 Notified 
counsel. [99-35976] (sf) [99-35976] 

1/3/00 Received Amicus ACLUF in 99-35976’s 
brief in 15 copies of 30 pages; deficient: 
motion pending to Panel w/brief; served 
on 1/3/00 [99-35976] (ft) [99-35976] 

16 

_________________________________________________ 

DATE ENTRY 

_________________________________________________ 

1/3/00 Filed Amicus ACLUF motion for leave to 
file brief Amici Curiae of ACLUF; [99- 
35976] served on 1/3/00 [PANEL] (ft) [99- 
35976] 

1/5/00 Filed Amicus FPD in 99-35976’s motion 
for leave to file amicus curiae brief 
pursuant to Rule 29 FRAP; [99-35976] 
served on 12/30/99 [3821922] (PANEL) (ft) 
[99-35976] 

1/5/00 Received Immigrants Rights Project’s 
brief in 15 copies of 26 pages; deficient: 
motion to panel w/ brief; served on 1/3/00 
[99-35976] (ft) [99-35976] 

1/5/00 Filed Amicus Immigrants Rights in 99- 
35976’s motion for leave to file proposed 
brief as amici curiae; and to file exhibits to 
proposed brief; [99-35976] served on 1/3/00 
[Panel with brief] (ft) [99-35976] 

* * * * * 

1/6/00 Received Petitioner’s additional citations. 
(Panel) [99-35976] (hj) [99-35976] 

17 

_________________________________________________ 

DATE ENTRY 

_________________________________________________ 

1/12/00 Filed order (Deputy Clerk: GB) Peti- 
tioner’s motion to file an oversize brief is 
granted. Petitioner’s brief is ordered filed. 
The caption in the above case should be 
corrected to reflect the respondent as 
“Reno” in place of “INS.” (phoned counsel; 
faxed to Panel) [99-35976] (hj) [99-35976] 

1/12/00 Filed order (Deputy Clerk: GB) The 
motions of amici curiae Federal Public 
Defenders, Law Professors, National 
Association of Criminal Defense Lawyers, 
and Human Rights watch, et al. are here- 
by granted. The briefs received January 3, 
2000 are ordered filed. The INS is hereby 
given fourteen days from the date of this 
order within which to respond. The INS’ 
brief shall not exceed thirty pages in 
length. (phoned counsel; faxed to panel) 
[3821367-1] [3821342-1] [3821380-1] 
[3821922-1] [99-35976] (hj) [99-35976] 

1/12/00 Filed original and 15 copies of National 

Association of Criminal Defense Lawyers 
99- 35976’s brief of 29 pages; served on 
12/30/99. [99-35976] (hj) [99-35976] 

18 

_________________________________________________ 

DATE ENTRY 

_________________________________________________ 

1/12/00 Filed original and 15 copies Human 

Rights Watch, et al brief of 29 pages; 
served on 12/30/99. [99-35976] (hj) [99- 
35976] 

1/12/00 Filed original and 15 copies appellee Kim 

Ho Ma in 99-35976’s 76 pages brief w/ 
supplemental excerpts in 2 vols; served on 
12/27/99 (Panel) [99-35976] (hj) [99-35976] 

1/12/00 Filed original and 15 copies Law Pro- 
fessors in 99-35976’s brief of 24 pages; 
served on 12/30/99. (PANEL) [99-35976] 
(hj) [99-35976] 

1/12/00 Filed original and 15 copies of FPD’s brief 
of 21 pages; served on 12/30/99. (PANEL- 
RECORDS) [99-35976] (hj) [99-35976] 

* * * * * 

1/18/00 Filed original and 15 copies Respondents- 
Appellant’s 99-35976 reply brief, (In- 
formal: no) 30 pages; served on 1/10/00. 
(PANEL) [99-35976] (hj) [99-35976] 

19 

_________________________________________________ 

DATE ENTRY 

_________________________________________________ 

1/19/00 Filed order (Deputy Clerk: GB) The 

Motion filed by Attorney Jayashri 
Srikantiah to file an amici curiae brief on 
behalf of the ACLU-IRP, ACLU-WA, and 

NWIRP, is DENIED. The motion filed by 
Attorney Frank M. Tse to file an amici 
curiae brief on behalf of the organizations 
listed in his motion and in the proposed 
amici curiae brief, is GRANTED and that 
brief is ordered filed. Within fourteen (14) 
days of the filing of this order, the appel- 
lants may respond, in not to exceed thirty 
(30) pages, to the amici curiae brief filed 
by attorney Tse. (phoned counsel; faxed to 
panel) [99-35976] (hj) [99-35976] 

1/19/00 Filed original and 15 copies’s The South- 
east Asia Resource Action Center, Immi- 
gration Rights and The Mount Carmel 
Cambodian Center et al., brief of 26 pages; 
served on 1/3/00. [99-35976] (hj) [99-35976] 

* * * * * 

1/31/00 Received Appellant INS et al., brief in 15 
copies 39 pages (Informal: no) deficient- 
motion pending: notified counsel. Served 
on 1/28/00. (sent Fed. Ex to PANEL) [99- 
35976] (hj) [99-35976] 

20 

_________________________________________________ 

DATE ENTRY 

_________________________________________________ 

2/2/00 Received FPD additional citations 
(PANEL) [99-35976] (hj) [99-35976] 

* * * * * 

2/4/00 Filed original and 15 copies aplts’ brief in 
reply to be the briefs of amici curiae of 39- 
pgs. (Informal: no) (PREVS RECVD) (See 
ct’s order filed 2/4/00) [99-35976] (rc) [99- 
35976] 

2/7/00 Received FPD in 99-35976 additional 
citations. (faxed to PANEL) [99-35976] 
(hj) [99-35976] 

2/14/00 ARGUED AND SUBMITTED TO Stephen 

R. REINHARDT, David R. THOMPSON, 

Thomas G. NELSON [99-35976] (jmk) [99- 
35976] 

2/29/00 FILED, AS OF , CERTIFIED RECORD 

ON APPEAL IN 1 RTs (orig) [99-35976] 
(mu) [99-35976] 

3/21/00 Received Oil’s additional citations. 
(PANEL) [99-35976] (hj) [99-35976] 

3/30/00 Received Kim Ho Ma additional citations; 
served on 3/29/00. (“faxed” PANEL) [99- 
35976] (dl) [99-35976] 

21 

_________________________________________________ 

DATE ENTRY 

_________________________________________________ 

4/10/00 FILED OPINION: AFFIRMED. (Termi- 
nated on the Merits after Oral Hearing; 
Affirmed; Written, Signed, Published. 
Stephen R. REINHARDT, author; David 

R. THOMPSON; Thomas G. NELSON) 
FILED AND ENTERED JUDGMENT. [99- 
35976] (rc) [99-35976] 

4/21/00 [3896937] Filed original and 50 copies 
aplts’ petition for rehearing with sug- 
gestion for rehearing en banc of 15-pgs; 
served on 4/21/00. (PANEL AND ALL 
ACTIVE JUDGES) [99-35976] (rc) [99- 
35976] 

4/21/00 Filed aplt’s mtn to expedite consideration 
of petition for rehearing and rehearing en 
banc and for vacatur of the panel’s 
decision; served on 4/21/00. (PANEL) [99- 
35976] [3896944] [99-35976] (rc) [99-35976] 

4/27/00 Filed order (Stephen Reinhardt, David R. 

THOMPSON, Thomas G. NELSON) The 
Government’s motion to expedite is 

GRANTED. Appellee is directed to file a 
response, of 15 pages or less, to the 
Petition for Rehearing En Banc no later 
than seven days from the date of this 
order. (Phoned parties, Faxed panel 4:50 
pm) [99-35976] (ca) [99-35976] 

22 

_________________________________________________ 

DATE ENTRY 

_________________________________________________ 

5/2/00 Filed Washington Legal, and Allied Edu- 
cational mtn for leave to file brief as amici 
curiae in support of petition of respon- 
dents-aplts for expedited rehearing and 
rehearing en banc; served on 4/28/00. 

(PANEL ONLY) [3903956] [99-35976] (rc) 
[99-35976] 

5/2/00 Received original and 50 copies, Amicus 

Washington Legal in 99-35976, Amicus 
Allied Educational in 99-35976’s brief in 
support of petition of respondents-aplts 
for expedited rehearing and rehearing en 
banc of 8-pgs; served on 4/28/00; deficient: 
mtn pending with PANEL to become 
amicus. (PANEL ONLY) [99-35976] (rc) 
[99-35976] 

5/4/00 Filed original and 50 copies of aple’s 
response to aplts’ petition for expedited 
rehearing and rehearing en banc of 15- 
pgs; served on 5/3/00. (PANEL AND ALL 
ACTIVE JUDGES) [3896937-1] [99-35976] 
(rc) [99-35976] 

23 

_________________________________________________ 

DATE ENTRY 

_________________________________________________ 

5/12/00 Filed Appellant’s motion for leave to file 

Reply to petitioner’s response to respon- 
dents’ petition for expedited rehearing 
and rehearing en banc. (Panel) [99-35976] 
served on 5/11/00 [3909000] [99-35976] (kc) 
[99-35976] 

5/12/00 Received Appellant’s reply to petitioner’s 
response to respondent’s petition for ex- 
pedited rehearing and rehearing en banc; 
served on 5/11/00. (Panel) [99-35976] (kc) 
[99-35976] 

5/16/00 Filed Petitioner-Appellee’s response to 
respondent-appellants motion for leave to 
file reply to petitioner-appellee’s response 
to respondent-appellant’s petition for ex- 
pedited rehearing and rehearing en banc; 
served on 5/15/00. (PANEL) (ca) [99- 
35976] 

5/19/00 Filed order (Stephen R. REINHARDT, 

David R. THOMPSON, Thomas G. 
NELSON,): The Attorney General’s mo- 
tion for leave to file a reply to the 
Petitioner’s response to the Attorney 
General’s petition for expedited rehearing 
and rehearing en banc is hereby denied. 
[99-35976] (ft) [99-35976] 

24 

_________________________________________________ 

DATE ENTRY 

_________________________________________________ 

5/31/00 Received certificate of record. [99-35976] 
(wp) [99-35976] 

6/2/00 Filed order (Stephen R. REINHARDT, 

David R. THOMPSON, Thomas G. NEL- 
SON) The panel has voted to deny the 
petition for rehearing and petition for 
rehearing en banc. The full court was 
advised of the petition for rehearing en 
banc. An active judge requested a vote on 
whether to rehear the matter en banc. 
The matter failed to receive a majority of 
the votes of the nonrecused active judges 
is favor of en banc consideration. The 
petition for rehearing and the petition for 
rehearing en banv are DENIED. [99- 
35976] (ca) [99-35976] 

6/12/00 MANDATE ISSUED [99-35976] (rc) [99- 
35976] 

7/11/00 Received notice from Supreme Court: 
petition for certiorari filed Supreme Court 
No. 00-38. filed on 7/5/00. [99-35976] (ca) 
[99-35976] 

25 

_________________________________________________ 

DATE ENTRY 

_________________________________________________ 

10/16/00 Received letter from the Supreme Court 
dated 10/10/00 re: the ct today entered the 
following order. The mtn of the 
Washington Legal Foundation, et al. for 
leave to file a brief as amicus curiae is 

GRANTED. The mtn of respondent Kim 
Ho Ma for leave to proceed ifp is 

GRANTED. The petition for a writ of cert. 
is GRANTED. The cases are consolidated 
and a total of one hour is allotted for oral 
argument. (FAXED TO PANEL) [99- 
35976] (rc) [99-35976] 

26 

UNITED STATES DEPARTMENT OF JUSTICE 
EXECUTIVE OFFICE 
FOR IMMIGRATION REVIEW 
IMMIGRATION COURT 
Seattle, Washington 

File No.: A 27 365 395 

IN THE MATTER OF 

KIM HO MA, RESPONDENT 

ORDER RE 
REMOVAL PROCEEDINGS 

CHARGE: Section 237(a)(02)(A)(iii), I&N Act 
[8 U.S.C. Section 1227(a)(2)(A)(iii)] – 
aggravated felony 

APPLICATION: Respondent’s eligibility to apply for 
political asylum or withholding of 
deportation 

IN BEHALF OF 
RESPONDENT: 

Nicholas Marchi, Esq. 
1301 Fifth Avenue, 
Ste. 2804 
Seattle, WA 98101 

IN BEHALF OF INS: 

Gregory Fehlings, Esq. 
Deputy District Counsel 
P.O. Box 3324 
Seattle, WA 98114 

ORDER OF THE IMMIGRATION JUDGE 

Respondent was admitted to the United States at 
Seattle, Washington on or about April 26, 1985 as a 
refugee. His status was adjusted to that of a lawful 

27 

permanent resident as of April 26, 1985. (Exhibit 1) The 
Immigration and Naturalization Service (hereinafter 
“INS”) issued a Notice to Appear (hereinafter “NTA”) 
on July 3, 1997, charging Respondent in Removal pro- 
ceedings pursuant to Section 237(a)(02)(A)(iii), with 
aggravated felony. (Exhibit 1) 

On August 21, 1997, respondent, through counsel 
requested that the Court permit him to file for asylum 
or withholding of deportation. The Court opines that 
respondent is ineligible for the relief, however, has 
granted respondent’s counsel until September 10, 1997 
to file any additional documents or briefs. The INS was 
granted until September 16, 1997, to file a responsive 
brief. Respondent has yet to answer to the allegations 
and charges. 

On September 4, 1997, respondent filed a Memo- 
randum Defining ‘Danger to Society’ and Request for 
Relief. (Exhibit 2) On September 10, 1996, INS filed its 
memorandum contending that respondent is statutorily 
ineligible for a grant of asylum or withholding of de- 
portation, because of his conviction for a particularly 
serious crime. 

On March 1, 1996, the respondent was convicted in 
the State of Washington, for the offense of “Man- 
slaughter in the First Degree.” Respondent argues 
that he is eligible for withholding of deportation, de- 
spite his conviction, as respondent can demonstrate 
that he has rehabilitated and does not pose a threat to 
the community. Respondent was sentenced to 38 
months in confinement. (Exhibit 1) 

28 

Based upon respondent’s admissions as to the allega- 
tions in the NTA and the Additional Charges of Deport- 
ability, as well as respondent’s conceding to his 
removability, and the Judgment and Sentence sub- 
mitted by the INS (Exhibit 2), I find that removability 
has been established by clear, convincing and unequi- 
vocal evidence. Woodby v. INS, 385 U.S. 276 (1966). 
The Respondent failed to designate a country of re- 
movability, should that become necessary, therefore, 
this Court designates Cambodia, since that is the 
country of respondent’s birth and nativity. The only 
issue before this Court is whether respondent is eligible 
for asylum and/or withholding of deportation. 

Respondent contends that his conviction is an 
aggravated felony, but he is not a danger to the com- 
munity. Respondent contends that he is eligible for 
asylum, because he has rehabilitated and does not pose 
a threat to the community. These arguments are with- 
out merit. 

STATEMENT OF LAW 

This case is similar to a recent case decided July 29, 
1997, In re L-S-J-, Interim Decision #3322, (BIA 1997) 
wherein the Board of Immigration Appeals held that 
robbery with a gun is an aggravated felony and a 
particularly serious crime. 

In re L-S-J-, supra, the applicant is excludable under 
sections 212(a)(2)(A)(i)(I), (A)(i)(II), and (7)(A)(i)(I), 
of the Immigration and Nationality Act, 8 U.S.C. 
{{1182(a)(2)(A)(i)(II), (A)(i)(II), and (7)(A)(i)(II) (1994). 
In that case, applicant’s applications for asylum and 
withholding of deportation to Haiti under sections 208 

29 

and 243(h) of the Act, 8 U.S.C. {{1158 and 1253(h) (1994) 
were pretermitted. Applicant was ordered excluded 
and deported from the United States. 

Respondent is a 20-year old native and citizen of 
Cambodia. The record establishes that the applicant 
was convicted on March 1, 1996, of Manslaughter in the 
First Degree and sentenced to 38 months in prison. 
(Exhibit 1) 

According to the Amended Information filed October 
31, 1995, respondent and two other Asian males, on 
April 23, 1995, with premeditated intent to cause the 
death of another person did cause the death of Oun Roo 
Chhay, a human being, who died on or about April 23, 
1995. (Exhibit 2) Although respondent was at that time 
17 years old, he was ordered to be tried as an adult. 
Respondent was found guilty after trial. Respondent 
and two other Asian males were involved in shooting at 
the victim, which subsequently lead to the victim’s 
death. 

Respondent was involved in gang activities. The 
victim was a member of the OLB (Oriental Lazy Boys), 
whereas respondent was a member of the LAB (Local 
Asian Boys). According to the Certification for Deter- 
mination of Probable Cause (Exhibit 2), the victim was 
in a parking lot while respondent and the two other 
Asian males crept towards the victim and opened fire in 
the direction of the victim. Thus, this was a pre- 
meditated and planned killing. 

There is no evidence that respondent has rehabili- 
tated. According to the Defense Recommendation in 
the Defendant’s Presentence Report, it is disclosed that 

30 

respondent should not have been tried as an adult. 
There is nothing in the report indicating that re- 
spondent has rehabilitated. The report only indicates 
respondent comes from a very good and responsible 
family. According to this report, respondent blames his 
problems on his witnessing of other violence and 
persecution in his home, Cambodia. The respondent 
has offered a letter from family members desiring to 
reunite with him. No letters from any probation officer 
have been presented. Even if, assuming arguendo, that 
respondent rehabilitated, his crime is a particularly 
serious crime and makes him ineligible for withholding 
of deportation or asylum. 

The respondent’s crime is now considered an ag- 
gravated felony under the revised definition of section 
101(a)(43)(F) of the Act, because he has committed a 
crime of violence for which the term of imprisonment is 
at least 1 year. 

Section 321(a)(3) of the Illegal Immigration Reform 
and Immigrant Responsibility Act of 1996, enacted as 
Division C of the Departments of Commerce, Justice, 
and State, and the Judiciary Appropriations Act for 
1997, Pub. L. No. 104-208, 110 Stat. 3009, ____ 
(IIRIRA) (to be codified at 8 U.S.C. { 1101(a)(43)(F) 
of the Act). See generally United States v. Gonzalez- 
Lopez, 911 F.2d 542 (11th Cir. 1990), cert. denied, 500 
U.S. 933 (1991) (defining a crime of violence). This 
revised definition applies to the pending case. 

Section 321(c) of the IIRIRA, 110 Stat at ____; see 
also Matter of A-A-, 20 I&N Dec. 492 (BIA 1992); 
Matter of U-M-, 20 I&N Dec. 327 (BIA 1991), aff’d, 989 
F.2d 1085 (9th Cir. 1993), modified, Matter of C-, 20 

31 

I&N Dec. 529 (BIA 1992). Under section 208(d) of the 
Act (now sections 208(b)(2)(A)(ii) and (B)(i) of the Act 
pursuant to section 604(a) of the IIRIRA, 110 Stat. at 
____ (to be codified at 8 U.S.C. {{ 1158(b)(20(A)(ii) and 
(B)(i) (effective April 1, 1997), the applicant may not 
apply for or be granted asylum because of his conviction 
for an aggravated felony. See Matter of A-A-, supra. 

The Immigration and Nationality Act was revised by 
section 413(f) of the Antiterrorism and Effective Death 
Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 
1269 (enacted April 24, 1996) (AEDPA), which states 
that the Attorney General may determine whether 
discretion to withhold deportation should be exercised 
in favor of any alien in order to comply with the United 
Nations Protocol Relating to the Status of Refugees, 
Jan. 31, 1967, [1968] 19 U.S.T. 6223, T.I.A.S. No. 6577, 
606 U.N.T.S. 26. 

In the case of an alien convicted of an aggravated 
felony but not sentenced to at least 5 years in prison, 
the type of crime and the circumstances should be 
examined to determine whether the alien committed a 
particularly serious crime. See Matter of O-T-M-T-, 
Interim Decision 3300 (BIA 1996). Whether a crime is 
particularly serious depends on the nature of the 
conviction, the circumstances and underlying facts of 
the conviction, the type of sentence imposed, and 
whether the type and circumstances of the crime 
indicate that the alien will be in a danger to the com- 
munity. Matter of Frentescu, 18 I&N Dec. 244 (BIA 
1982), modified, Matter of C-, supra, Matter of Gon- 
zalez, 19 I&N Dec. 682 (BIA 1988). 

32 

The respondent was sentenced to 36 months in 
prison; he threatened violence with handgun against a 
victim who subsequently died from the gunshot wound. 
This Court concludes that the respondent has been 
convicted of a particularly serious crime. Therefore, his 
application for withholding of deportation is pre- 
termitted. See Matter of D-, 20 I&N Dec. 827, 828 n.1 
(BIA 1994); Matter of Garcia-Garrocho, 19 I&N Dec. 
423 (BIA 1986), modified on other grounds, Matter of 
Gonzalez, supra; Matter of Carballe, 19 I&N Dec. 357 
(BIA 1986), modified on other grounds, Matter of Gon- 
zalez, supra. 

Respondent is ineligible to apply for asylum, since he 
has been convicted of an aggravated felony. Re- 
spondent is also ineligible for withholding of de- 
portation, since his crime is a particularly serious crime. 

ORDER 

IT IS ORDERED that respondent’s application for 
asylum and withholding of deportation be pretermitted. 

IT IS FURTHER ORDERED that the respondent be 
removed from the United States to Cambodia on the 
charges set forth in the Notice to Appear and the 
Additional Charges of Deportability. 

DATE: Sept. 12, 1997 

/s/ ANNA HO 

ANNA HO 
Immigration Judge 

33 

UNITED STATES DEPARTMENT OF JUSTICE 
EXECUTIVE OFFICE 
FOR IMMIGRATION REVIEW 
IMMIGRATION COURT 
Seattle, Washington 

File No.: A 27 365 395 

IN THE MATTER OF 

KIM HO MA, RESPONDENT 

ORDER RE 
BOND REDETERMINATION 

CHARGE: Section 237(a)(02)(A)(iii), I&N Act 
[8 U.S.C. Section 1227(a)(2)(A)(iii)] – 
aggravated felony 

APPLICATION: Bond Redetermination 

IN BEHALF OF 
RESPONDENT: 

Nicholas Marchi, Esq. 
1301 Fifth Avenue, 
Ste. 2804 
Seattle, WA 98101 

IN BEHALF OF INS: 

Gregory Fehlings, Esq. 
Deputy District Counsel 
P.O. Box 3324 
Seattle, WA 98114 

ORDER OF THE IMMIGRATION JUDGE 

Respondent was admitted to the United States at 
Seattle, Washington on or about April 26, 1985 as a 
refugee. His status was adjusted to that of a lawful 
permanent resident as of April 26, 1985. (Exhibit 1) 
The Immigration and Naturalization Service (here- 

34 

inafter “INS”) issued a Notice to Appear (hereinafter 
“NTA”) on July 3, 1997, charging Respondent in Re- 
moval proceedings pursuant to Section 237(a)(02) 
(A)(iii), with aggravated felony. (Exhibit 1) 

On August 21, 1997, respondent, through counsel 
requested that the Court permit him to file for asylum 
or withholding of deportation. The Court opines that 
respondent is ineligible for the relief, however, has 
granted respondent’s counsel until September 10, 1997 
to file any additional documents or briefs. The INS was 
granted until September 16, 1997, to file a responsive 
brief. Respondent has yet to answer to the allegations 
and charges. 

On September 4, 1997, respondent filed a Memo- 
randum Defining ‘Danger to Society’ and Request for 
Relief. (Exhibit 2) On September 10, 1996, INS filed its 
memorandum contending that respondent is statutorily 
ineligible for a grant of asylum or withholding of 
deportation, because of his conviction for a particularly 
serious crime. 

On March 1, 1996, the respondent was convicted in 
the State of Washington, for the offense of “Man- 
slaughter in the First Degree.” Respondent argues that 
he is eligible for withholding of deportation, despite his 
conviction, as respondent can demonstrate that he has 
rehabilitated and does not pose a threat to the 
community. Respondent was sentenced to 38 months in 
confinement. (Exhibit 1) 

Based upon respondent’s admissions as to the 
allegations in the NTA and the Additional Charges of 
Deportability, as well as respondent’s conceding to his 

35 

removability, and the Judgment and Sentence sub- 
mitted by the INS (Exhibit 2), I find that removability 
has been established by clear, convincing and unequi- 
vocal evidence. Woodby v. INS, 385 U.S. 276 (1966). 
The Respondent failed to designate a country of re- 
movability, should that become necessary, therefore, 
this Court designates Cambodia, since that is the 
country of respondent’s birth and nativity. 

STATEMENT OF LAW 

An alien should not be detained or required to post 
bond unless there is a finding that he is a threat to the 
national security or a poor bail risk. Matter of 
Spiliopoulos, 16 I&N Dec. 561 (BIA 1978); Matter of 
Patel, 15 I&N Dec. 666 (BIA) 1976; See Matter of 
Andrade, 19 I&N Dec. 488 (BIA 1987). In determining 
the necessity for and the amount of a bond, such factors 
as a stable employment history, length of residence in 
the community, the existence of family ties, a record of 
nonappearance at court proceedings, and previous 
criminal or immigration law violations are properly 
considered. See Matter of Andrade, supra; Matter of 
Sugay, 17 I&N 637 (BIA 1981); Matter of Shaw, 17 I&N 
Dec. 177 (BIA 1979); Matter of Spiliopoulos, supra; 
Matter of Patel, supra; Matter of San Martin, 15 I&N 
Dec. 167 (BIA 1974); See also O’Rouke v. Warden, 
Metropolitan Correction Center, 539 F. Supp. 1131 
(S.D.N.Y. 1982). 

A respondent with a greater likelihood of being 
granted relief from deportation has a greater moti- 
vation to appear for a deportation proceedings than one 
who, based on a criminal record or otherwise, has less 
potential of being granted further relief. See Matter of 

36 

Andrade, supra. The mere risk of continued narcotics 
trafficking constitutes danger to safety of persons in 
the community. In re Modesto Adalberto Melo-Pena, A 
36 557 334—Oakdale, Decided February 20, 1997 (BIA). 

Under the Illegal Immigration Reform and Immi- 
grant Responsibility Act of 1996, the Transitional 
Period Custody Rules under 309(b)(3)(B) are applicable. 
The Rule states in pertinent part as follows: 

“(B) RELEASE. - The Attorney General may release 
the alien only if the alien is an alien described in 
subparagraph (A)(ii) or (A)(iii) and” (Note: (A)(iii) is 
aggravated felony) 

(i) the alien was lawfully admitted to the United 
States and satisfies the Attorney General that the 
alien will not pose a danger to the safety of other 
persons or of property and is likely to appear for 
any scheduled proceedings, . . . .” 

Therefore, this Court needs to reconsider the Bond in 
this case, since the respondent is a lawful permanent 
resident. 

ANALYSIS OF FACTS & LAW 

In this case, respondent has denied deportability due 
to the manslaughter in the first degree. The Court has 
received the certified copies of the judgment and 
sentence in this matter. The Court has entered an 
Order of Removal in this case. Specifically, this is a 
conviction for manslaughter in the first degree, an 
aggravated felony, and under the Antiterrorism and 
Effective Death Penalty Act, as well as Illegal Immi- 

37 

grant Reform and Immigrant Responsibility Act of 
1996, respondent would not be entitled to any relief. 

The Court balanced the charges against respondent 
with his ties to the community. Respondent has resided 
in this country as a Lawful Permanent Resident since 
April 26, 1985, approximately 12 years ago. Respon- 
dent has extensive family. Respondent has continuously 
worked in this country. Although respondent’s convic- 
tion makes him a danger to the community, respondent 
is not a flight risk. Due to the nature of respondent’s 
conviction, this Court finds that he would be a danger 
to the community. Therefore, no amount of bail would 
be able to guarantee the community’s safety. 

However, the offense of which he was convicted was 
manslaughter in the first degree. This Court holds that 
Manslaughter in the First Degree is a particularly 
serious crime. Furthermore, respondent would be a 
danger to the community if he is released. Therefore, 
bond is denied. 

This Court has already ordered that respondent be 
removed from the United States by a previous order. 

ORDER 

The respondent shall remain in custody without 
bond, until he is removed from the United States, as 
ordered by this Court on September 12, 1997. 

DATE: Oct. 7, 1997 

/s/ ANNA HO 

ANNA HO 
Immigration Judge 

38 

UNITED STATES DEPARTMENT OF JUSTICE 
EXECUTIVE OFFICE 
FOR IMMIGRATION REVIEW 
IMMIGRATION COURT 
Seattle, Washington 

File No.: A 27 365 395 

IN THE MATTER OF 

KIM HO MA, RESPONDENT 

ORDER RE 

BOND REDETERMINATION 

CHARGE: Section 237(a)(02)(A)(iii), I&N Act 
[8 U.S.C. Section 1227(a)(2)(A)(iii)] – 
aggravated felony 

APPLICATION: Bond Redetermination 

IN BEHALF OF 
RESPONDENT: 

Kaaren L. Barr, Esq. 
3811 Eastern Avenue North 
Seattle, WA 98103 

IN BEHALF OF INS: 

Gregory Fehlings, Esq. 
Deputy District Counsel 
P.O. Box 3324 
Seattle, WA 98114 

ORDER OF THE IMMIGRATION JUDGE 

Respondent was admitted to the United States at 
Seattle, Washington on or about April 26, 1985 as a 
refugee. His status was adjusted to that of a lawful 

39 

permanent resident as of April 26, 1985. (Exhibit 1) 
The Immigration and Naturalization Service (here- 
inafter “INS”) issued a Notice to Appear (hereinafter 
“NTA”) on July 3, 1997, charging Respondent in Re- 
moval proceedings pursuant to Section 237(a)(02) 
(A)(iii), with aggravated felony. (Exhibit 1) 

On September 26, 1997, the Respondent, through 
previous counsel, Nicholas Marchi, filed a Motion to 
Reconsider or Clarify Decision. On October 8, 1997, 
this Court issued an Order Denying Respondent’s 
Request to Redetermine Bond. In this same Court, this 
Court found respondent removable as charged in the 
Notice to Appear. On December 30, 1997, respondent, 
through new counsel, Kaaren L. Barr, filed a Request 
for Redetermination of Bond. 

On March 1, 1996, the respondent was convicted in 
the State of Washington, for the offense of “Man- 
slaughter in the First Degree.” Respondent argues 
that he is eligible for withholding of deportation, de- 
spite his conviction, as respondent can demonstrate 
that he has rehabilitated and does not pose a threat to 
the community. Respondent was sentenced to 38 
months in confinement. (Exhibit 1) 

Based upon respondent’s admissions as to the 
allegations in the NTA and the Additional Charges of 
Deportability, as well as respondent’s conceding to his 
removability, and the Judgment and Sentence sub- 
mitted by the INS (Exhibit 2), I find that removability 
has been established by clear, convincing and unequi- 
vocal evidence. Woodby v. INS, 385 U.S. 276 (1966). 
The Respondent failed to designate a country of remov- 
ability, should that become necessary, therefore, this 

40 

Court designates Cambodia, since that is the country of 
respondent’s birth and nativity. 

STATEMENT OF LAW 

An alien should not be detained or required to post 
bond unless there is a finding that he is a threat to the 
national security or a poor bail risk. Matter of 
Spiliopoulos, 16 I&N Dec. 561 (BIA 1978); Matter of 
Patel, 15 I&N Dec. 666 (BIA) 1976; See Matter of 
Andrade, 19 I&N Dec. 488 (BIA 1987). In determining 
the necessity for and the amount of a bond, such factors 
as a stable employment history, length of residence in 
the community, the existence of family ties, a record of 
nonappearance at court proceedings, and previous 
criminal or immigration law violations are properly 
considered. See Matter of Andrade, supra; Matter of 
Sugay, 17 I&N 637 (BIA 1981); Matter of Shaw, 17 I&N 
Dec. 177 (BIA 1979); Matter of Spiliopoulos, supra; 
Matter of Patel, supra; Matter of San Martin, 15 I&N 
Dec. 167 (BIA 1974); See also O’Rouke v. Warden, 
Metropolitan Correction Center, 539 F. Supp. 1131 
(S.D.N.Y. 1982). 

A respondent with a greater likelihood of being 
granted relief from deportation has a greater moti- 
vation to appear for a deportation proceedings than one 
who, based on a criminal record or otherwise, has less 
potential of being granted further relief. See Matter of 
Andrade, supra. The mere risk of continued narcotics 
trafficking constitutes danger to safety of persons in 
the community. In re Modesto Adalberto Melo-Pena, A 
36 557 334 - Oakdale, Decided February 20, 1997 (BIA). 

Under the Illegal Immigration Reform and Immi- 
grant Responsibility Act of 1996, the Transitional 

41 

Period Custody Rules under 309(b)(3)(B) are applicable. 
The Rule states in pertinent part as follows: 
“(B) RELEASE. - The Attorney General may 
release the alien only if the alien is an alien described in 
subparagraph (A)(ii) or (A)(iii) and” (Note: (A)(iii) is 
aggravated felony) 

(i) the alien was lawfully admitted to the United 
States and satisfies the Attorney General that the 
alien will not pose a danger to the safety of other 
persons or of property and is likely to appear for 
any scheduled proceedings, . . . .” 

Therefore, this Court needs to reconsider the Bond in 
this case, since the respondent is a lawful permanent 
resident. 

ANALYSIS OF FACTS & LAW 

In this case, respondent has denied removability due 
to the manslaughter in the first degree. The Court has 
received the certified copies of the judgment and 
sentence in this matter. The Court has entered an 
Order of Removal in this case. Specifically, this is a 
conviction for manslaughter in the first degree, an 
aggravated felony, and under the Antiterrorism and 
Effective Death Penalty Act, as well as Illegal Immi- 
grant Reform and Immigrant Responsibility Act of 
1996, respondent would not be entitled to any relief. 

Respondent’s new counsel, Kaaren L. Barr, sub- 
mitted additional letter from the respondent and psy- 
chological report from the Washington Corrections 
Center in Shelton, Washington. (Exhibit 2) According 
to this information, respondent did not admit that he 
had anything to do with the crime of which he was 
convicted. According to this report, respondent states, 

42 

“There’s nothing to talk about. I was charged with it 
[manslaughter]. I was there. I didn’t know what was 
happening. I didn’t have a gun. I didn’t have nothing. 
I didn’t know. I didn’t say nothing in my trial.” 
Obviously, respondent feels absolutely no remorse for 
what he has done. 

Respondent denies any connection with gang involve- 
ment in the beginning of this report (Exhibit 2, Page 9). 
Later on, however, respondent stated, “. . . . his 

community is involved in gangs, and one adapts to it. 
[Emphasis added] . . . . one thing led to another the 

night of the offense . . . .” 

The Psychologist, Carla van Dam, PhD, went on to 
summarize her impression of respondent as follows: 
“He (Respondent) exhibited little insight, denied any 
knowledge of the instant offense, and said he was not 
involved in any gang activity despite information to the 
contrary.” 

Respondent also denied that he abused drugs. How- 
ever, during the evaluation, respondent stated as 
follows: “there’s no past use. I’ve experiences with it. 
I don’t abuse it.” Respondent was drunk the night of 
the offense and had been using marijuana that same 
night. 

It is more significant from the report of the Psy- 
chologist that respondent is a danger to the community. 
Respondent come from a good family, but respondent 
strayed from his family and got involved in drugs and 
gang activity. Respondent refuses to accept responsi- 
bility, although in his letter he finally admitted to his 
involvement in gang activities. Respondent was 17 

43 

when he committed the offense and he is now only 20 
years old. There is nothing in the respondent’s file to 
indicate that he has rehabilitated. 

The Court balanced the charges against respondent 
with his ties to the community. Respondent has resided 
in this country as a Lawful Permanent Resident since 
April 26, 1985, approximately 12 years. Respondent 
has extensive family. Respondent has continuously 
worked in this country. Although respondent’s convic- 
tion makes him a danger to the community, respondent 
is not a flight risk. Due to the nature of respondent’s 
conviction, this Court finds that he would be a danger 
to the community. Therefore, no amount of bail would 
be able to guarantee the community’s safety. 

However, the offense of which he was convicted was 
manslaughter in the first degree. This Court holds 
that Manslaughter in the First Degree is a particularly 
serious crime. Furthermore, respondent would be a 
danger to the community if he is released. Therefore, 
bond is again denied. 

This Court has already ordered that respondent be 
removed from the United States by a previous order. 

ORDER 

The respondent shall remain in custody without 
bond, until he is removed from the United States, as 
previously ordered by this Court. 

DATE: Dec. 31, 1997 

/s/ ANNA HO 

ANNA HO 
Immigration Judge 

44 

U.S. Department of Justice 
Decision of the Board 

Executive Office for 

of Immigration Appeals 

Immigration Review 

Falls Church, Virginia 22041 

File: A27 365 395 – Seattle 

Date: OCT 26 1998 

In re: KIM HO MA 

IN REMOVAL PROCEEDINGS 

APPEAL 

ON BEHALF OF RESPONDENT: 

Kaaren L. Barr, Esquire 
3811 Eastern Avenue North 
Seattle, Washington 98103 

CHARGE: 

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 
§ 1227(a)(2)(A)(iii)]— 
Convicted of aggravated felony 

APPLICATION: Asylum, withholding of removal 

In an oral decision rendered on September 12, 1997, 
an Immigration Judge found the respondent to be 
subject to removal as charged, pretermitted his appli- 
cation for asylum and withhholding of removal, and 

45 

ordered him deported to Cambodia. The appeal will be 
dismissed. 

I. DEPORTABILITY 

The respondent, a native and citizen of Cambodia, 
entered the United States as a refugee in 1985. His 
status was adjusted to that of a lawful permanent 
resident as of April 25, 1985. 

The Immigration Judge properly admitted into evi- 
dence the record of conviction. Matter of Madrigal, 
Interim Decision 3274 (BIA 1996). The Second 
Amended Information shows that the respondent and 
three others were charged with murder in the first 
degree in Count One and murder in the second degree 
in Count Two in the State of Washington. The Infor- 
mation alleged that they caused the death of another 
person. The Judgment and Sentence report establishes 
that on March 1, 1996, in a court of the State of 
Washington, the respondent was convicted of Count 
One of manslaughter in the first degree in violation of 
section 9A.32.060(1) of the Revised Code of Wash- 
ington. A person is guilty of manslaughter in the first 
degree under Washington law when he recklessly 
causes the death of another. The crime constitutes a 
felony. He was sentenced to confinement for 38 months. 

We agree with the Immigration Judge that the 
respondent’s crime constitutes a “crime of violence” 
under the recently amended definition of an aggravated 
felon in section 101(a)(43)(F) of the Act. 8 U.S.C. 
§ 1101(a)(43)(F), which applies to this case. See Illegal 
Immigration Reform and Immigrant Responsibility Act 
of 1996, Division C of Pub. L. No. 104-208, § 321, 110 

46 

Stat. 3009, 3009-586 (“IIRIRA”); Matter of Yeung, 
Interim Decision 3297 (BIA 1996) (attempted man- 
slaughter is a crime of violence); Matter of Alcantar, 20 
I&N Dec. 801 (BIA 1994) (definition of crime of 
violence). There is no evidence of a direct appeal of the 
conviction, so it is final for immigration purposes. 
Matter of Gabryelsky, 20 I&N Dec. 750, 752 (BIA 1993). 

II. WITHHOLDING OF REMOVAL 

The respondent is not eligible for most forms of relief 
from removal due to his conviction for an aggravated 
felony after his admission to the United States as a 
lawful permanent resident. See section 208 of the Act 
as amended by the IIRIRA § 604(a), 110 Stat. at 3009- 
586 (to be codified at 8 U.S.C. § 1158) (asylum); section 
212(h) of the Act as amended by the IIRIRA § 348, 110 
Stat. at 3009-586 (to be codified at 8 U.S.C. § 1182) 
(waiver of inadmissibility); section 240A of the Act as 
added by the IIRIRA § 304(a)(3), 110 Stat. at 3009-586 
(to be codified at 8 U.S.C. § 1229b) (cancellation of 
removal); section 240B of the Act as added by the 
IIRIRA § 304(a)(3), 110 Stat. at 3009-586 (to be codified 
at 8 U.S.C. § 1229(c)) (voluntary departure). 

1. Section 241(b)(3) of the Act. 

In removal proceedings, section 241(b)(3)(A) of the 
Act specifies that there shall be a restriction on re- 
moval to a country where an alien’s life or freedom 
would be threatened on account of race, religion, 
nationality, membership in a social group, or political 

47 

opinion.1 Section 241(b)(3)(B) of the Act provides cer- 
tain exceptions to the restriction. In the instant case, 
we are concerned with section 241(b)(3)(B)(ii) which 
states that an alien is ineligible for withholding if, “the 
alien, having been convicted of a particularly serious 
crime, is a danger to the community of the United 
States.” The final paragraph of section 241(b)(3)(B) 
states that: 

For purposes of clause (ii), an alien who has been 
convicted of an aggravated felony (or felonies) for 
which the alien has been sentenced to an aggregate 
term of imprisonment of at least 5 years shall be 
considered to have committed a particularly serious 
crime. The previous sentence shall not preclude the 
Attorney General from determining that, 
notwithstanding the length of the sentence imposed, 
an alien has been convicted of a particularly serious 
crime. . . . 

The final paragraph contains language which was not 
included in previous versions of the Act. Before inter- 
preting this language, it is helpful to consider the 
history of the particularly serious crime bar and 
withholding of deportation. 

2. Section 243(h) of the Act. 

The statutory provision for withholding of deporta- 
tion was found at section 243(h) of the Act (previously 
codified at 8 U.S.C. § 1253(h)).2 It was initially specified 

1 This provision was added by section 305(a) of the IIRIRA, 110 
Stat. at 3009-586 (to be codified at 8 U.S.C. § 1231(b)(3)(A)). 

2 A more detailed history of section 243(h) of the Act is set 
forth in Matter of O-T-M-T-, Interim Decision 3300, at 9-12 (BIA 
1996). 

48 

that withholding should be denied to an alien who, 
“having been convicted by a final judgment of a parti- 
cularly serious crime, constitutes a danger to the com- 
munity of the United States.” See section 243(h)(2)(B) 
of the Act. 

The Board addressed the question of what would be a 
“particularly serious crime” in Matter of Frentescu, 18 
I&N Dec. 244 (BIA 1982), modified, Matter of C-, 20 
I&N Dec. 529 (BIA 1992); Matter of Gonzalez, 19 I&N 
Dec. 682 (BIA 1988). In Matter of Frentescu, the Board 
held that in judging the seriousness of a crime, we look 
to such factors as the nature of the conviction, the 
circumstances and underlying facts of the conviction, 
the type of sentence imposed, and most importantly, 
whether the type and circumstances of the crime 
indicate that the respondent is a danger to the com- 
munity. See id. at 247. Further, we stated that crimes 
against persons are more likely to be categorized as 
particularly serious, but that there may be instances 
where crimes (or a crime) against the property will be 
considered to be particularly serious. Id. It was 
subsequently established that once an alien is found to 
have committed a particularly serious crime, there is no 
need for a separate determination to address whether 
the alien is a danger to the community. See Matter of 
K-, 20 I&N Dec. 418 (BIA 1991), 

aff’d Kofa v. INS , 60 
F.3d 1084 (4th Cir. 1995); see also Matter of O-T-M- T-, 
Interim Decision 3300, at 11 (BIA 1996). 

The Board also determined that certain crimes could 
be considered per se particularly serious, and therefore 
once the conviction was established, there was no need 
to proceed to an individualized examination of the 
crime. See Matter of Frentescu, supra, at 247. See also 

49 

Hamama v. INS, 78 F.3d 233, 240 (6th Cir. 1996) (re- 
cognizing the Board’s practice of finding that some 
crimes are inherently particularly serious); Ahmetovic 

v. INS, 62 F.3d 48, 52 (2d Cir. 1995) (upholding a Board 
decision which found that first degree manslaughter 
was an inherently particularly serious crime). 
However, the Ninth Circuit Court of Appeals ques- 
tioned this practice in Beltran-Zavala v. INS, 912 F.2d 
1027 (9th Cir. 1990). In that case, the Court found that 
section 243(h)(2)(B) of the Act did not erect per se 
classifications of crimes precluding immigration and 
nationality benefits, and that the statutory language 
committed the Board to an analysis of the character- 
istics and circumstances of the alien’s conviction. See 
id. at 1032. 

Congress amended section 243(h)(2) of the Act 
through the Immigration Act of 1990. See generally 
Matter of A-A-, 20 I&N Dec. 492 (BIA 1992). Specifi- 
cally, a final sentence was added to section 243(h)(2) 
which stated that aggravated felonies are to be con- 
sidered particularly serious crimes for the purpose of 
section 243(h)(2). This addition eliminated the need for 
an individual analysis of the underlying facts and 
circumstances in any case which the conviction was for 
an aggravated felony. See Matter of C-, supra, (modify- 
ing Matter of Frentescu and its progeny in light of 
statutory amendment); see also Urbina-Mauricio v. 
INS, 989 F.2d 1085, 1088 (9th Cir. 1993) (stating that 
statutory amendment effectively overruled Beltran- 
Zavala v. INS, supra). 

The next major change in the withholding law occur- 
red with the passage of section 413(f) of the Anti- 
terrorism and Effective Death Penalty Act of 1996, 

50 

Pub. L. No. 104-132, 110 Stat. 1214 (enacted April 24, 
1996). The Board considered the effects of this pro- 
vision on the aggravated felony bar in Matter of O-T-M- 
T-, supra. We concluded that an alien who has been 
convicted of an aggravated felony or felonies, and 
sentenced to at least 5 years of incarceration, is con- 
clusively barred from withholding of deportation. 
However, an alien who was convicted of an aggravated 
felony or felonies, and sentenced to an aggregate of less 
than 5 years of incarceration, would be subject to a 
rebuttable presumption that he or she has been 
convicted of a particularly serious crime which would 
bar eligibility from withholding. The holding in Matter 
of O-T-M-T-, was intended to apply to cases which were 
initiated before April 1, 1997, and were not controlled 
by IIRIRA. 

3. Section 241(b)(3)(B) of the Act 

We now address the contents of current section 
241(b)(3)(B)(ii) of the Act in conjunction with the final 
paragraph of section 241(b)(3)(B) of the Act. The plain 
language of the first sentence of the final paragraph 
makes it clear that an alien who has been convicted of 
an aggravated felony (or felonies), and sentenced to at 
least 5 years, is barred from withholding of removal. 
This creates an absolute bar. Therefore, once the 
aggravated felony conviction and length of sentence are 
found to trigger the bar, no further analysis of the 
conviction is necessary. 

This leaves the question of what standards should be 
used for aliens, such as the respondent, who have been 
convicted of an aggravated felony (or felonies), and 
have been sentenced to less than 5 years. We find that 

51 

the Frentescu factors are still a viable framework for 
evaluating whether a crime is “particularly serious.” 
We therefore will employ them in this case where a 
determination must be made as to the nature of the 
crime for the purpose of section 241(b)(3)(B) of the Act. 
This inquiry does not involve an examination of the 
respondent’s family or community ties, or the risk of 
persecution in the alien’s native country. See Ramirez- 
Ramos v. INS, 814 F.2d 1394, 1397-1398 (9th Cir. 1987). 
Further, we do not engage in a retrial of the alien’s 
criminal case or go behind the record of conviction to 
redetermine the alien’s innocence or guilt. See Matter 
of O-T-M-T-, supra, at 20. Our review of any testimony 
or other evidence beyond the official records of con- 
viction will be very limited and will focus on the 
underlying nature and circumstances of the crime. 

4. The Respondent’s Conviction 

Therefore, the Immigration Judge in this case pro- 
perly cited Matter of Frentescu, supra, and its factors 
in determining whether the respondent had committed 
a particularly serious crime. She concluded that the 
respondent had been convicted of a particularly serious 
crime because he was sentenced to 36 months in prison 
and he threatened violence with a handgun against a 
victim who subsequently died from the gunshot wound. 

The respondent contends that the Immigration Judge 
abused her discretion in holding that the respondent 
had been convicted of a “particularly serious crime,” 
and thus, pretermitting his application for withholding 
of removal. Upon consideration of the relevant factors, 
the Board agrees with the Immigration Judge that the 

52 

respondent’s conviction is for a particularly serious 
crime. 

Looking first to the statute under which the re- 
spondent was convicted to determine the nature of the 
conviction, the respondent was found guilty as pre- 
viously noted of first degree manslaughter by reck- 
lessly causing the death of another. This offense 
contrasts with the offense of second degree man- 
slaughter which requires only criminal negligence in 
causing death. See West’s RCWA 9A.32.060, 9A.32.070. 
Therefore, he acted with a higher degree of culpability 
in causing the death of another even though he com- 
mitted the crime without specific intent. Furthermore, 
at the time of the conviction, his offense was classified a 
Class B felony, the second most serious type of felony 
out of three categories of felonies under Washington 
law.3 The statute under which he was convicted indi- 
cates he was convicted of a particularly serious crime. 

Looking to the respondent’s Judgment and Sentence, 
we note that the maximum term of punishment 
provided for the offense was 10 years with a sentencing 
range applicable to the respondent of 31 to 41 months 
based on his criminal record of no prior convictions. See 
West’s RCWA 9.94A.310, 9.94A.320, 9.94A.360 (sen- 
tencing guidelines). We acknowledge that he received 
less than the one-half of the maximum due to the 
absence of prior convictions, but we also note that he 
received almost the maximum sentence that could be 

3 It is now classified a Class A felony, the most serious felony 
under Washington law. See RCWA 9A.20.10(1)(b) (classification); 
9A.32.060 (first degree manslaughter); 9.94A.360(2) (indicating 
severity of categories of felonies). 

53 

ordered based on his criminal record, further indicating 
the seriousness of his crime. 

The respondent asserts that he was only 17-years-old 
at the time of the commission of the crime and that he 
should have been tried as a juvenile where he would 
have received a sentence of less than 1 year. However, 
Washington law mandates 16 and 17-years-old be tried 
as adults if they committed first degree manslaughter 
(but not second degree manslaughter) because it is 
considered a serious violent offense. See West’s RCWA 

9.94A.030(31) (definition of serious violent offense); 

13.04.030(e)(v)(A) (juvenile court jurisdiction). The 
State requirement that he be tried as an adult further 
indicates the particular seriousness of his crime. 

The respondent further contends that the Immi- 
gration Judge committed error by considering facts 
contained in the documents charging the respondent 
with first degree murder as an adult rather than 
considering those facts contained in the documents 
relating to his conviction for first degree manslaughter. 
The respondent is referring to Second Amended 
Information and to the Certification For Determination 
of Probable Cause. 

We find consideration of these documents by the 
Immigration Judge was appropriate in this case in 
determining the underlying circumstances of the re- 
spondent’s crime. When the Judgment and Sentence 
and the Second Amended Information are considered 
together, they establish that the jury found him guilty 
under Count 1 of the lesser included crime of first 
degree manslaughter rather than first degree murder. 
The Immigration Judge was not prejudiced by her 

54 

awareness that he had been charged with a much more 
serious homicide. In addition, he did not challenge, 
either during the proceedings or on appeal, the 
essential facts recited in the probable cause affidavit. 
The probable cause affidavit is detailed in nature and 
sworn to by the prosecuting attorney. Moreover, the 
facts alleged in the probable cause affidavit are not 
inconsistent with his conviction for the less serious 
crime of first degree manslaughter. It was reasonable 
for the Immigration Judge to consider the probable 
cause affidavit in determining the underlying circum- 
stances of the crime. 

Considering the probable cause affidavit in the light 
most favorable to the respondent, it indicates that he 
was a part of a group of five gang members that am- 
bushed and shot a fellow gang member who subse- 
quently died. Even if he was not one of the two 
shooters, the nature of the conviction, the severity of 
the sentence, and the description of the crime establish 
that he was part of a group that planned to assault the 
victim with handguns. The jury found him to be 
culpable for the victim’s death as the result of the 
ambush even if he did not pull the trigger or intend the 
victim to die. His conviction and sentence to confine- 
ment for more than 3 years reflects the seriousness of 
his participation in the commission of this violent crime. 
Crimes against persons are more likely to be catego- 
rized as particularly serious crimes. Matter of Fren- 
tescu, supra. Considering the totality of the circum- 
stances of the crime, we agree with the Immigration 
Judge that his participation in a gang related violent 
ambush resulting in the death of victim constitutes a 
particularly serious crime and bars him from applying 
for withholding of removal. Cf. Matter of L-S-J-, 

55 

Interim Decision 3322 (BIA 1997) (alien convicted of 
armed robbery); Matter of Carballe, 19 I&N Dec. 357 
(BIA 1986) (alien convicted of armed robbery). 

The respondent contends that the Immigration Judge 
erred when she pretermitted his application for with- 
holding of removal without making a specific finding 
that he is both convicted of a particularly serious crime 
and he is presently a danger to the community as 
required by the statute. However, as previously noted, 
a particularly serious crime is one that by its nature 
represents a danger to the community. See Urbina- 
Mauricio v. INS, supra; Matter of K-, supra. 

The respondent contends that his constitutional right 
to due process was violated when he was ordered 
removed without an opportunity for relief from removal 
for having been convicted of a crime committed prior to 
his 18th birthday. We do not have the authority to 
consider constitutional challenges to the laws we 
administer. See Matter of C-, 20 I&N 529 (BIA 1992); 
Matter of Anselmo, 20 I&N Dec. 25, 30 (BIA 1989). 
Furthermore, we find that the Immigration Judge did 
not deny him a meaningful opportunity to be heard. See 
Liu v. Waters, 55 F.3d 421 (9th Cir. 1995) (the Board 
has authority to fix administratively correctable errors 
even when those errors are failures to follow due 
process). 

56 

In light of the foregoing, we enter the following 
order. 

ORDER: The appeal is dismissed. 

/s/ PAUL W. SCHMIDT 

FOR THE BOARD 

57 

Notification of Review of Detention Status 

At Seattle, WA 

To: Kim Ho Ma 

File: A27 365 395 

You have been held in detention while the 
Immigration and Naturalization Service (INS) made 
arrangement for your deportation. 

The law allows that INS keep you in detention until 
your deportation is carried out (8 CFR 241.4). How- 
ever, if it appears that INS will encounter delays in 
making arrangements for your deportation that law 
also says that the District Director may allow your 
release at his discretion. Before he will consider your 
release he must be satisfied of two things. Those are 

l That you will not pose a danger to the community 
if you are released, and 

l That you will appear for all future proceedings, 
including an order to report back to this Service for 
deportation once arrangements are finalized. 

In reaching a decision about those two things he must 
consider at least the following factors: 

l The nature and seriousness of your criminal 
convictions; 

l Other criminal history; 

l Sentence(s) imposed and time actually served; 

l History of failures to appear for court (defaults); 

l Probation history; 

l Disciplinary problems while incarcerated; 

58 

l Evidence of rehabilitative effort or recidivism; 

l Equities in the United States; and 

l Prior immigration violations and history. 

As a part of this process you may present evidence 
proving that you will not be a danger to the community, 
and that you will appear as ordered in any future 
proceedings. If you are a criminal alien that evidence 
must be clear and convincing. If you have no criminal 
background the evidence must simply be satisfactory to 
the District Director. 

An officer will meet with you soon to allow you the 
opportunity to make any oral statements you wish. Any 
evidence you wish to present must be in writing and 
submitted to that officer. 
_________________________________________________ 

Provided to the alien by (hand) (institution mail). 

/s/ M. MELENDEZ 
4/13/99 

Officer Signature Date 

59 

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 
AT SEATTLE 

NO. C 99-0151WD 

KIM HO MA, PLAINTIFF 

vs. 

IMMIGRATION AND NATURALIZATION SERVICE, 
DEFENDANT 

[Filed: Apr. 23, 1999] 

AMENDED PETITION FOR WRIT OF HABEAS 

CORPUS BY A PERSON IN FEDERAL CUSTODY 
PURSUANT TO 28 U.S.C. § 2241 

1. Name and location of place of confinement:1 

King County Correctional Facility, Regional Justice 
Center Kent, 620 West James Street, Kent, Wash- 
ington 98032, pursuant to a contractual arrangement 
with petitioner’s custodian, the INS District Director at 
Seattle, Washington. 

2. Name and location of court causing confinement: 

INS District Director, Seattle, Washington 

1 This petition substantially conforms to the Model Forms for 
petitions under 28 U.S.C. § 2241. 

60 

3. Case Name and Number: A 27 365 395 

4. Date of judgment and conviction: 

Placed in INS detention on June 6, 1997; 
petitioner was ordered deported in September of 1997; 
petitioner appealed his deportation order to the BIA, 
which denied his appeal in October of 1998. 

5. Sentencing Date: N/A 

6. Sentencing: N/A 

7. Sentencing Judge: N/A 

8. Nature of offense or offenses for which you were 
convicted: N/A 

9. What was your plea: N/A 

10. Kind of trial: N/A 

11. Did you testify at trial? N/A 

12. Did you appeal from the judgment of conviction or 
sentence? No. 

13. If you did appeal, list the court to which you 
appealed: 

(a) Name of Court: 

(b) Result: 

(c) Date of Result: 

14. Did you seek any further review? N/A 

61 

15. List the court(s) to which you sought further 

review? 

(a) Name of Court: 

(b) Nature of Review: 

(c) Result: 

(a) Name of Court: 

(b) Nature of Review: 

(c) Result: 

16. Other than a direct appeal from the judgment of 

conviction and sentence, have you previously filed any 
petitions, applications, or motions with respect to your 
confinement in any court, state or federal? 

Subsequent to this petition, petitioner filed a 
Petition for Writ of Habeas Corpus by a Person in 
Federal Custody Pursuant to 28 U.S.C. §2241 (Case No. 
C99-0337C, U.S. Dist. Ct., W.D. Wa.) 

17. GROUNDS FOR RELIEF: 

A. Petitioner’s indefinite detention by respon- 
dent INS is in violation of his rights to procedural and 
substantive due process, as guaranteed by the Fifth 
Amendment to the United States Constitution. 

B. Because petitioner is seeking relief related 
only to his custody status, which is not inconsistent 
with an order of deportation, exhaustion of admini- 
strative remedies, if any, is not required. 

62 

C. Petitioner’s detention is unconstitutional, be- 
cause he is not a flight risk, and he does not present a 
danger to society. 

17a. Facts in support of grounds for relief as set forth 
in §17: 

A. Petitioner is subject to an order of deporta- 
tion, not incarceration, however he is being deprived of 
personal liberty indefinitely because Cambodia, his 
native country, refuses to accept his return. 

B. Petitioner has asked the Immigration Judge 
for release to community supervision, and has been 
denied bail three times. Petitioner went on a hunger 
strike to bring attention to his unlawful detention, but 
the INS did nothing. 

Petitioner should not be required to exhaust ad- 
ministrative remedies (if any such remedies are 
actually available) relating to the underlying order for 
deportation in order to be released from his indefinite 
incarceration, which violates his constitutional rights. 

C. Petitioner has many family members who 
would support him if he were released. He has a good 
job waiting for him and a place to live in a safe environ- 
ment. Petitioner would make a positive contribution to 
society if he were released. 

Although the INS is holding petitioner because it 
believes he is a danger to the community or a flight 
risk, or both, it is not giving him any access to educa- 
tional, rehabilitative or vocational programs. Petitioner 
is therefore not being given any chance to prove his 
rehabilitation. 

63 

D. Petitioner filed the instant pro se petition on 
February 2, 1999. The Federal Public Defender’s Office 
was appointed to represent Petitioner on April 22, 1999. 
As of today’s date, counsel for Petitioner has not re- 
ceived the Administrative File (A-file) from Respon- 
dent. 

Petitioner’s claim that he is being detained uncon- 
stitutionally is the same claim raised by over fifty other 
petitioners presently seeking relief in this district. By 
Order of the District Court for the Western District of 
Washington, Petitioner’s case will be heard before a 
“panel” of all five district court judges along with four 
other “lead” cases. Counsel for Petitioner intends to 
perform a comprehensive review of the Petitioner’s A- 
file, as well as independently investigate the individual 
circumstances of Petitioner’s claims, which Petitioner 
anticipates will disclose additional facts supporting the 
above-stated claims. 

The Petitioner reserves the right to assert addi- 
tional facts once Respondent provides counsel with his 
INS administrative file, and in rebuttal to facts alleged 
by the INS in its brief in this proceeding. 

18. Do you have any petition or appeal now pending 
in any court or administrative body as to the claims 
raised above? No. 

64 

19. Have you exhausted your administrative remedies 

with respect to the claims raised above? 

See 17(D), above. 

20. State the administrative remedies that you 
pursued? 

(a) Nature of Review: 

(b) Result: 

(a) Nature of Review: 

(b) Result: 

(a) Nature of Review: 

(b) Result: 

21. Give the name and addresses, if known, of each 
attorney who represented you in the following stages of 
the underlying judgment: 

(a) At preliminary hearing: N/A 

(b) At arraignment and plea: N/A 

(c) At change of plea: N/A 

(d) At trial: N/A 

(e) At sentencing: N/A 

(f) On Appeal: N/A 

(g) In any post-conviction proceedings: N/A 

(h) On appeal from any adverse ruling in post 
conviction proceedings: N/A 

(i) Other: 

(j) Other: 

65 

22. Do you have any future sentence to serve after 

you complete the sentence imposed by the underlying 
judgment in your case? No. 

23. If you are seeking leave to proceed in forma 
pauperis, have you completed the sworn affidavit 
setting forth the required information? Yes. 

PRAYER FOR RELIEF 

Based upon the illegal and unconstitutional actions 
listed above, Petitioner requests that the Court grant 
his petition and direct respondent to release him from 
custody, as well as any other relief to which he may be 
entitled in this proceeding under 28 U.S.C. § 2241. 

On information and belief, the foregoing information 
is true and correct. 

Dated: April 23, 1999. 

Respectfully submitted, 

/s/ JAY STANSELL 

JAY STANSELL 
Assistant Federal Public Defender 
Attorney for Petitioner Kim Ho Ma 
Federal Public Defender 
1111 Third Avenue, Suite 1100 
Seattle, WA 98101 
(206) 553-1100 

66 

[seal omitted] 
U.S. Department of Justice 

Immigration and Naturalization Service 
Western Region, Seattle Division 

_________________________________________________ 
Office of Detention & Deportation 815 Airport Way 

South 
Seattle, WA 98134 
(206) 553-5948/7915 
Fax: (206) 553-2387 

May 5, 1999 

Consulate General of Cambodia 
4500 16 

th Street NW 
Washington, DC 20011 

Dear Consul General: 

Kim Ho MA, A27 365 395, a native and citizen of 
Cambodia, is in the custody of the Immigration and 
Naturalization Service. He is under removal pro- 
ceedings, and has been ordered removed from the 
United States by the Immigration Judge. Therefore, it 
is respectfully requested that a travel document be 
issued to facilitate his return to Cambodia. 

The attached are documents that your office re- 
quires. Your expeditious handling of this matter of 
mutual interest is greatly appreciated. We have 
included a return FedEx airbill and envelop for your 
convenience. 

67 

If additional information is needed, please call either 
Deportation Officer Michael A. Melendez or Richard 
McNees, at the numbers given above. 

Thank you for your assistance in this matter. 

Sincerely, 

/s/ GEORGE L. MORONES 

GEORGE L. MORONES 
Assistant District Director, 
Detention & Deportation 

68 

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF WASHINGTON 

Civil Action No. C 99-151L 
INS # A27 365 395 

KIM HO MA, PETITIONER, 

v. 

JANET RENO, ATTORNEY GENERAL 

OF THE UNITED STATES; THE IMMIGRATION AND 
NATURALIZATION SERVICE; AND, 

RICHARD C. SMITH, DISTRICT DIRECTOR OF THE INS, 
SEATTLE DISTRICT OFFICE, RESPONDENT 

DECLARATION OF PATRICK O’REILLY 

1. I am a Staff Officer, assigned to the Immigration 
and Naturalization Service, Field Operations Division, 
United States Department of Justice, Washington, D.C. 
I have been employed by the Service since 1971. 

2. My present duties include development of policy 
and regulations relating to the enforcement of final 
orders of deportation and the removal of criminal aliens 
from the United States. In my current position I am 
personally familiar with inter- and intra- governmental 
efforts that have been undertaken to establish a pro- 
cedure for the repatriation of persons who are citizens 
and nationals of the Cambodia and have been ordered 
excluded, deported, or removed from the United States. 

69 

3. I am aware that the petitioner in this matter has 
a petition for a writ of habeas corpus pending before the 
United States District Court for the Western District 
of Washington. This declaration will provide the 
District Court with evidence setting forth the current 
status of efforts to establish a protocol for obtaining 
travel documents for citizens of Cambodia who have 
been deported from the United States. 

4. I am aware that the Service is detaining criminal 
aliens from Cambodia pending receipt of travel docu- 
ments, and that the government of Cambodia has not 
honored requests from the Service for travel docu- 
ments in most such cases. The Service is actively 
seeking to resolve this problem and establish a pro- 
cedure to obtain travel documents for persons from 
Cambodia. In the meantime, all requests for travel 
documents are handled on a case-by-case basis through 
the Embassy’s Consular Section. 

5. The process of establishing such procedures for 
the return of persons who are citizens and nationals of 
Cambodia, however, is a sensitive and complicated 
matter for both governments. Cambodia, for example, 
like other countries, regulates travel and emigration of 
its citizens. It has, in recent years, cooperated with 
other governments with respect to both the resettle- 
ment abroad and the return of Cambodian nationals, 

e.g., the Orderly Departure Program (ODP). 

6. It is the position of the United States that other 
countries, including Cambodia are required as a matter 
of international law to accept and repatriate their 
citizens who are excluded or expelled from this country 

70 

and who have not obtained another nationality in the 
interim. 

7. Pending establishment of procedures for re- 
patriation of nationals of Cambodia, criminal aliens can 
be considered for release from Service custody in 
accordance with the Immigration and Nationality Act 
(INA) and the regulations promulgated thereunder if 
the country of removal refuses repatriation. 

8. Further, when an alien’s removal from the 
United States has been delayed by the failure of the 
alien’s own government to issue travel documents, such 
alien may seek admission to a third country. Additional 
removal countries are discussed generally in Section 
241(b) of the INA. 

I declare under penalty of perjury that the fore- 
going is true and correct to the best of my knowledge. 

Executed in Washington, D.C. 

Dated: 5/20/99 /s/ PATRICK O’REILLY 

PATRICK O’REILLY, 
Staff Officer 
Immigration and Naturalization 

Service 
Department of Justice 

71 

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF CALIFORNIA 

Civil Action No. S-98-1299 WBS JFM 
INS # A25197145 
DJ# 39-11E-252 

CHEA PHOENG, PETITIONER 

v. 

MR. THOMAS SCHILTGEN, DISTRICT DIRECTOR, 
UNITED STATES IMMIGRATION AND 

NATURALIZATION SERVICE, RESPONDENT 

DECLARATION OF PATRICK O’REILLY 

1. I am a Staff Officer, assigned to the Immigration 
and Naturalization Service, Field Operations Division, 
United States Department of Justice, Washington, D.C. 
I have been employed by the Service since 1971. 

2. My present duties include development of policy 
and regulations relating to the enforcement of final 
orders of deportation and the removal of criminal aliens 
from the United States. In my current position I am 
personally familiar with inter-and intra- governmental 
efforts that have been undertaken to establish a proce- 
dure for the repatriation of persons who are citizens 
and nationals of the Cambodia and have been ordered 
excluded, deported, or removed from the United States. 

3. I am aware that the petitioner in this matter has a 
petition for a writ of habeas corpus pending before the 
United States District Court for the Eastern District of 

72 

California. This declaration will provide the District 
Court with evidence setting forth the current status of 
efforts to establish a protocol for obtaining travel docu- 
ments for citizens of Cambodia who have been deported 
from the United States. 

4 I am aware that the Service is detaining criminal 
aliens from Cambodia pending receipt of travel docu- 
ments, and that the government of Cambodia has not 
honored requests from the Service for travel docu- 
ments. The Service is actively seeking to resolve this 
problem and establish a procedure to obtain travel 
documents for persons from Cambodia. 

5. The process of establishing such procedures for 
the return of persons who are citizens and nationals of 
Cambodia, however, is a sensitive and complicated 
matter for both governments. Cambodia, for example, 
like other countries, regulates travel and emigration of 
its citizens. It has in recent years cooperated with 
other governments with respect to both the resettle- 
ment abroad and the return of Cambodian nationals, 

e.g., the Orderly Departure Program (ODP). 

6. It is the position of the United States that other 
countries, including Cambodia, are required as a matter 
of international law to accept and repatriate their 
citizens who are excluded or expelled from this country 
and who have not obtained another nationality in the 
interim. The Department of Justice and Department of 
State are developing a strategy to strengthen the 
cooperation with the government of Cambodia which 
would be similar to the draft agreement currently being 
developed for the Republic of Vietnam. 

73 

7. Pending establishment of procedures for repatria- 
tion and nationals of Cambodia, criminal aliens can be 
considered for release from Service custody in accor- 
dance with the Immigration and Nationality Act (INA) 
and the regulations promulgated thereunder if the 
country of removal refuses repatriation. 

8. Further, when an alien’s removal from the United 
States has been delayed by the failure of the alien’s own 
government to issue travel documents, such alien may 
seek admission to a third country. Additional removal 
countries are discussed generally in Section 241(b) of 
the INA. 

I declare under penalty of perjury that the foregoing 
is true and correct to the best of my knowledge. 

Executed in Washington, D.C. 

Dated: 11/18/98 

/s/ PATRICK O’REILLY 

PATRICK O’REILLY, 
Staff Officer 
Immigration and 

Naturalization Service 
Department of Justice 

74 

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF CALIFORNIA 

No. Civ. S-98-1299 WBS 

CHEA PHOENG, PETITIONER 

v. 

IMMIGRATION AND NATURALIZATION SERVICE, 
RESPONDENT 

DEPOSITION OF PATRICK O’REILLY 

[July 12, 1999] 

REPORTED BY: 
CHERREE P. GAGE 

CSR No. 11108, RPR 

* * * * * 

[7] MR. BRODERICK: I would like to put on the 
record a stipulation of attorneys regarding objections 
and preservation of objections. 

MR. KLINE: All objections are preserved for any 
future proceedings, save those as to form. 

MR. BRODERICK: We agree. Now if you could 
administer the oath. 

(Witness sworn.) 

75 

EXAMINATION BY MR. BRODERICK 

Q Mr. O’Reilly, I’d like to start with Cambodia. 
Exhibit 1 is your November 18th, 1998, declaration filed 
in the case of Chea Phoeng versus the INS. In that 
declaration you state that the INS is, quote, actively, 
close quote, seeking to establish a procedure to obtain 
travel documents from Cambodia. 

I wonder if you could tell us, what specifically was 
the INS doing? What were you referring to in that 
sentence? It’s actually the last sentence of paragraph 
four. 

A What the agency was—what the Immigration 
Service was attempting to do was to finalize our draft 
agreement that we had prepared for the Vietnam, 
Cambodian, Laotian countries, and we were processing 
it through internally in the Immigration Service at the 
time. 

[8] 

Q Now, with respect to Cambodia, was there a 
separate draft agreement from the one for Vietnam? 

A No. The draft agreement for Vietnam started out 
to be a draft agreement for Vietnam. But as the 
Cambodian and Laotian government expressed a need 
for a draft agreement, we made a generic agreement, 
basically, which we figured would be utilized at a later 
date when we approached the various governments. 
This was back at the planning stage in 1996. 

Q Now, with respect to some other acts, as of 
November 18th, 1998, had a representative of the INS 
met with the Cambodian Ambassador? 

76 

A No, they had not. 

Q Had the United States been invited by Cambodia 
to submit a proposed repatriation agreement? 

A Through correspondence the Cambodia Consu- 
late, the Embassy in Washington, D.C., has expressed a 
need for a return agreement. 

Q Now, I want to get on that. In fact, they had said 
—what you’re referring to, I think, is—let’s look at 
Exhibit 3, second paragraph. First line says, “The 
government of the United States of America and the 
Royal Government of Cambodia have not yet 
negotiated an agreement to cover the deportation and 
[9] return of former Cambodian citizens to Cambodia.” 
This is signed by the 2nd Secretary and Consul. Is that 
what you’re referring to? 

A I’m referring to letters similar to this. This is 
more or less a format type of letter sent out by the 
Cambodian government when it responds to various 
inquiries to get travel documents. They always—the 
format usually states we haven’t negotiated an 
agreement as of yet and they would not be issuing 
travel documents. 

Q I’m not referring in my question to the fact there 
is no agreement, as this letter seems to indicate. What 
I’m asking is if the Cambodian Embassy has actually 
invited or requested the United States to submit a 
proposed repatriation agreement similar to what the 
Vietnam Ambassador did? 

MR. KLINE: Object as to form. There’s lack of 
foundation for the question. 

77 

Q BY MR. BRODERICK: Did you understand the 
question? 

A I understood the question. 

Q Okay. Go ahead and answer. 

A I understood the question to say has there been a 
formal letter to the United States Immigration Service 
requesting negotiations for—is this what you’re [10] 
asking? 

Q Or oral. Oral or in writing. 

A In writing, yes. This is a request telling us that 
they are waiting for us to negotiate an agreement. It’s 
not a direct request to the Commissioner of the 
Immigration Service. This is a request saying we’re 
waiting for the United States government to sit down 
with us and negotiate an agreement. This is what this 
paragraph tells me. 

Q Let’s look at Exhibit 15, for example. This will be 

15. If we turn to page three of Exhibit 15, the second 
line—I’m sorry. The last sentence of paragraph num- 
ber seven. It goes, “In May of this year representatives 
of the Service,” meaning the INS, “met with SRV 
Ambassador Le Bang, who invited the United States to 
submit a proposed repatriation agreement for possible 
negotiation between the two states.” Did this happen 
with Cambodia? 

A No, it did not. 

Q Now, has the State Department been asked to 
prepare a draft agreement for Cambodia? 

78 

A By who? 

Q By the INS. 

A No. 

Q Do you know if accompanying Circular 175 [11] 
authority—do you know what that is? 

A Yes. 

Q Do you know if a memo with accompanying 
Circular 175 authority was prepared by the State 
Department? 

A I became aware last month at a meeting with staff 
officials at the State Department, Department of 
Justice and the INS that this was in the process of 
being done as soon as—the draft agreement was being 
signed off by the Commissioner, the DAG’s office and 
forwarded to the State Department. 

Q There has been no 175 authority memo prepared 
as of this date to Cambodia? 

MR. KLINE: I object. 

Q BY MR. BRODERICK: Is it yes or no? 

A To my knowledge, it has not been prepared. 

Q Do you know if a draft agreement has been cleared 
within the State Department? 

A What type of draft? 

Q Draft agreement with respect to Cambodia and 
the repatriation of former Cambodian nationals? 

79 

A A draft agreement? We submitted a draft 
agreement to them. They have sent it back to us 
throughout this whole process over the last few years, 
and they now—at our meeting that we had last month, 
we agreed on the wording in the draft agreement. And 
[12] this is why it’s at a point now we’re waiting for the 
appropriate officials to sign off on it so the preparations 
can be made for negotiations. 

Q Now, is this the draft agreement that will be 
presented to the Republic of Vietnam? 

A It’s the draft agreement which we’re requesting 
to be presented to the Republic of Vietnam, Laotian 
government and the Cambodia government. 

Q Do you know if the draft agreement that you’re 
referring to has been cleared with other interested 
federal agencies besides INS? 

A It has been cleared with the INS, Department of 
State and we’re cleared in the sense of a verbal—once 
it’s signed off by the DAG’s office, we will sign off on it 
here. And those are the only three agencies that have 
been involved in it. 

Q So it was never shown to the Department of 
International Trade or Department of Commerce? 

A There was not a requirement for that. 

Q Do you know if it was shown to them? 

A No. 

Q And you say the draft agreement has been pre- 
sented to the INS General Counsel’s Office? 

80 

A It’s been signed off. Last time I checked, which 
left a week ago, it was signed off by the General [13] 
Counsel. I’ll repeat myself. The meeting we had in 
June at the State Department, everybody was in agree- 
ment to the wording, it was a matter of tweaking a few 
things and having it sent over and signed off by the 
Commissioner. 

My understanding is it’s at the Executive 
Secretary’s office and it will be sent to the Deputy 
Commissioner and the Commissioner, signed, and then 
to the DAG’s for signature and Department of State. 

Q Do you know if the supporting memorandum that 
accompanied the draft agreement has been signed off 
by the General Counsel’s office? 

A Yes, I do. 

Q When was that? 

A I became aware of it last month at the meeting. 

Q What date last month? 

A Mid-June. I mean, I don’t recall the exact date. 

Q That’s okay. That’s okay. Do you know if any 
State Department employee has requested the neces- 
sary negotiating authority from the Secretary of State? 
This is, again, Circular 175 authority. 

A I was advised at the meeting last month by the 
legal counsel of the State Department that once the 
document was hand delivered to them with the appro- 
priate signatures on them, that they would [14] request 
this. 

81 

Q So the answer is no State Department employee 
has requested the necessary negotiating authority from 
the Secretary State? 

MR. KLINE: Object to form of question. That 
isn’t what he said. 

Q BY MR. BRODERICK: Can you answer the ques- 
tion? 

A Once the draft agreement is received by the legal 
counsel, the State Department—from the DAG’s office, 
it will be presented. 

Q To the Secretary of State’s office—Department of 
State? Excuse me. 

A Yes. 

Q So I will ask you again, has any – to your knowl- 
edge, has any State Department employee requested 
the necessary negotiating authority from the Secretary 
of State? 

A They have been unable to because they haven’t 
received the draft yet. 

Q So is the answer to my question no? 

A No, not at this time. 

Q No, it’s not, or, no, they haven’t requested it? 

A No, I have no knowledge of them requesting it. 

Q So has the negotiating draft been submitted to 
Cambodia? 

82 

[15] 

A No, it hasn’t. 

Q Do you know if Cambodia has reviewed any of the 
negotiating draft? 

A To my knowledge, no. 

Q Do you know if Cambodia has proposed time and 
venue for actual negotiations? 

A No. 

Q And I take it no agreement has been accepted by 
both sides, Cambodia and the United States? 

A The United States has a draft agreement they’re 
ready to go forward with. 

Q Has any final agreement been accepted by the 
United States? 

A As soon as the Commissioner and the DAG’s 
office sign off on it, it will be a final agreement on the 
Department of State. 

Q Has Cambodia accepted any final agreement? 

A Cambodia hasn’t been given the agreement. We 
haven’t gone into negotiations yet. 

Q Has the United States signed any agreement with 
Cambodia? 

A No, they have not. 

Q Has any agreement been implemented with 
Cambodia? 

83 

A No, it has not. 

MR. KLINE: Object as to the question. Vague 
and [16] ambiguous as to what agreement you’re 
speaking of there. 

MR. BRODERICK: I’m talking about the agree- 
ment— 

Q You understand the agreement I’m talking about? 

A I’m hoping it’s the agreement I’ve been working 
on. 

Q The one you referred to in a draft agreement? 

A Correct. 

MR. KLINE: Please don’t hope and don’t assume. 

Q BY MR. BRODERICK: You signed a declaration 
May 20th, 1999. That’s Exhibit No. 2. That also indi- 
cates that the INS is actively seeking to obtain travel 
documents from Cambodia. Was there anything differ- 
ent or anything new that happened between November 
1998 and May 20th, 1999. Anything different than what 
you just explained? 

A No. 

Q Today’s July the 12th, 1999. Again, is there 
anything different between now and what you just 
explained, except for meeting in June? 

MR. KLINE: Objection. He explained more than 
just meeting in June. 

84 

Q BY MR. BRODERICK: Well, I just want to know 
if there’s anything else besides the meeting in June? 

[17] 

A As far as I know, the draft agreement has not 
been—has not left the INS as of yet. It’s at the Exec 
Sec’s office waiting to be given to the Deputy Com- 
missioner. 

Q Now, turning back to Exhibit No. 1, page two, 
paragraph five. You indicate in the last sentence of 
that paragraph, you mention the Orderly Departure 
Program, ODP, and you indicate that Cambodia has 
“cooperated with other governments with respect to 
both the resettlement abroad and the return of 
Cambodian nationals.” 

By “other governments” did you mean not the 
United States government? 

A Yes, sir. 

Q In your paragraph six of that same declaration 
you state that the Department of Justice—again, last 
sentence, “The Department of Justice and Department 
of State are,” quote, “developing a strategy to 
strengthen the cooperation with the government of 
Cambodia.” 

Prior to November 18th, 1998, when was the last 
meeting on this issue between the Department of 
Justice and Department of State? 

A There were— 

MR. KLINE: If you know. 

85 

[18] THE WITNESS: I don’t know the exact dates. 
There were many follow-up meetings and meetings 
with the Department of State, with the Office of 
International Affairs, INS General Counsel regarding 
the whole process. 

Q BY MR. BRODERICK: How many is “many,” less 
than five? 

A I’d say more than five. 

Q Less than ten? 

A Yes. 

Q When was the last one in relation to November 
that you can recall? 

MR. KLINE: Objection. Vague and ambiguous 
question. 

Q BY MR. BRODERICK: When was the last one 
prior to November 18th, 1998? 

A I don’t recall. 

Q Between November 1998 and may the 20th 1999, 
how many meetings were there? 

A There were no meetings. 

Q In between May ‘99 and today, July 12th, 1999, 
how many meetings? 

A There was one meeting. 

Q And that was in June? 

A That’s correct. 

86 

[19] 

Q You indicated that there were many, quote, 
follow-up meetings. What were you referring to when 
you said “follow-up”? 

A CC mails—well, all right. Meetings. If we 
submitted a—if there was some question on the draft, if 
they wanted additional information or clarification or 
they felt this was no need to be in the draft agreement, 
those were the follow-up meetings we discussed on 
issues like that. 

A lot of times they would be telephonic, face-to- 
face, writing things, stuff like that. It involved the 
General Counsel’s office, it involved Department of 
State, it involved International Affairs, it involved the 
Program and Field Operations. You had many different 
entities involved in the various meetings. 

Q Okay. If we look at Exhibit 1, paragraph six, the 
last sentence again, “The Department of Justice and 
Department of State are developing a strategy to 
strengthen the cooperation with the government of 
Cambodia which would be similar to the draft 
agreement currently being developed for the Republic 
of Vietnam.” 

Now, in that paragraph you don’t indicate that 
the draft agreement would refer to all three [20] 
countries; is that correct? 

A No, I don’t. 

Q When did that change? 

A When did it change? 

87 

Q When did the draft agreement become a draft 
agreement for the all three countries? 

A It was part of a strategy that we had spoken 
about through the years of using this. We had found out 
that the various countries involved here wanted agree- 
ments, wanted removal type of return agreements set 
up with their country. This was always in the back of 
our mind when we were developing this whole thing. 

Q Who’s “we”? 

A The INS Field Operations. 

Q And who is that specifically in terms of persons? 

A Myself, Robert Obenshane (phonetic) and possibly 
one or two other persons involved. But myself and Mr. 
Obenshane were the two ones that wrote the 
agreement. 

Q Now, if you look at that sentence and then turn to 
Exhibit No. 2 and look at, again, paragraph six, same 
paragraph, that sentence is not there in paragraph six. 
Do you know why? 

MR. KLINE: Do you understand the question? 

THE WITNESS: No. 

[21] 

Q BY MR. BRODERICK: Well, let me make it clear. 
Paragraph six of Exhibit 1, the last sentence is there. 
Do you see it? 

A Okay. Yeah. 

88 

Q Paragraph six, Exhibit No. 2, it’s not there. Why? 

A Because we had already developed a strategy. 
The draft was already finalized. It had been sent to the 
General Counsel’s office. As far as my involvement in 
the whole process was done with, and at that point in 
time in ‘98 through ‘99 I was just making call ups of 
about every 60 days to find if out what the status was of 
the actual document itself and how it was moving along 
through the General Counsel’s chain of management. 
And—I mean, the strategy was done, as far as I was 
concerned. We weren’t developing it anymore. 

Q So as of May 20th, 1999, it was done? 

A May or June, yeah. Around May. 

Q Well, the declaration was May 20th, 1999. 

A Then it was May. 

Q Any earlier than that? 

A No. 

Q Now, again, Exhibit 2, paragraph number four, it 
states, “All requests for travel documents are handled 
[22] on a case-by-case basis through the Embassy’s 
Consular Section.” I apologize for the copy on— 

A That’s fine. 

Q That’s the only copy we have. 

A I wrote it, so I remember what it says. 

Q Do you mean handled by the INS on a case-by- 
case basis, is that what you were referring to? 

89 

A I’ll give you a little background on it. The actual 
process itself when you receive a final order on a case, 
what you’ll do is the district office responsible for the 
case, the deportation section of the investigation, 
depending on who was handling it, would request a 
travel document through the local consulate. Due to 
the fact these three countries were small and didn’t 
have local consulate sections, they would request 
through the embassy. They would send a presentation 
request to issue a travel document for this person from 
the district level, and that’s what I was referring to 
when I wrote that. 

Q So we are referring to handled by the INS on a 
case-by-case basis? 

A Yes. 

Q Now if you could look at Exhibit No. 3 again, 
that’s a letter from the Cambodian Embassy. And I 
think you indicated previously that you have seen [23] 
several letters like this? 

A Uh-huh. 

Q Is that correct? 

A Yes. I’ve seen letters that have the same sub- 
stance. 

Q Could you read aloud the first line of the second 
paragraph. 

A “The government of the United States of America 
and the Royal Government of Cambodia have not yet 
negotiated an agreement to cover the deportation and 
return of former Cambodian citizens to Cambodia.” 

90 

Q Now, as you understand it, does that appear to be 
a policy statement applicable to all cases? 

A It’s a statement. I don’t know if it’s a policy state- 
ment. 

Q Does it appear that the Cambodian to you—does 
it appear to you—from the statement does it appear 
that the Cambodian government is reviewing each case 
on a case-by-case basis? 

A Not to me. It appears to me that they are 
blanketly denying the request for travel documents 
until there is actually an agreement negotiated between 
the two governments. That’s my interpretation of this, 
my personal intrepretation. 

Q Right. If a request were made for travel [24] 
documents in an individual case and it received a 
response such as this in writing, would that request and 
the response go in the individual detainee’s INS A file? 

A Yes. 

Q So if no request or response was made – 

MR. KLINE: 
Excuse us. 

MR. BRODERICK: Let the record indicate that 
Richard Cohen, also staff attorney for the Federal 
Defender’s Office of the Eastern District of California, 
just walked in. Richard, you can figure out who 
everybody is later. 

Q BY MR. BRODERICK: So if the request or the 
response is not in an individual’s A file, does that 

91 

indicate that either no request or no response was 
received? 

MR. KLINE: Object to the question. “No request 
or response was received”? 

Q BY MR. BRODERICK: Sorry. No request was 
made or no response received? 

A I can’t answer that honestly. I don’t know. 

Q Do you know if they’re supposed to go in the A 
file if they’re made or received? 

A I would—from my experience of working in 
various field offices, I would place that in the [24] 
particular A file. Okay? If it’s not in there, to me, if I 
was reviewing the file, I would request whether there 
was a request made, but I can’t say whether it was or 
not. I don’t know what the—maybe one district might 
be doing it differently. I have no idea. 

Q Are you aware of any situations in your personal 
experience in which request was made in writing or a 
response received in writing and not placed in the A 
file? 

A To my knowledge, no. 

Q Now, in Exhibit No. 2, returning back to Exhibit 
2, paragraph four, again, this is a declaration of Patrick 
O’Reilly made on May the 20th, 1999, and filed in the 
Western District of Washington. 

If you look at paragraph number four and the 
first sentence, probably about the third line, you state 
that “The government of Cambodia has not honored 

92 

requests from the Service for travel documents in,” 
quote, “most such cases.” 

Now, are you aware of Cambodia honoring any 
requests from the INS for travel documents for 
detained aliens? 

A From the United States? 

Q From the United States? Detained aliens from 
[26] the United States. 

A Yes. 

Q How many? 

A One that I’m personally aware of. 

Q When was that? 

A 1997 

Q And who was that individual? 

A I don’t have the name. I have the copy of it at my 
office. 

Q And did that person have either exit or passport 
papers from the Cambodian government? Is it he or 
she? 

A It was a family, as a matter of fact. 

Q Now, we have a declaration of you regarding a 
Laotian family. 

A I also had a Cambodian family, too. 

Q How many members of the family? 

93 

A I think it was a man, wife and child, two children. 

Q And did this family exit Cambodia with either a 
passport or— 

A They had a passport. 

Q So they had a Cambodian passport? 

A They had a travel document, correct. 

Q So are you aware of any other cases in which [27] 
someone who did not have a travel document, where 
the Cambodian government honored a request? 

A To my knowledge of any cases that were brought 
forth to me for assistance, no. 

Q And you’re the person in charge of this? 

A In charge of what? 

Q You’re the person who develops policy and 
regulations relating to the enforcement of final orders 
of deportation and the removal of criminal aliens from 
the United States? 

A Yes, I develop policies. I don’t handle cases 
nationwide. 

Q So why did you use the word “most” in this 
declaration? 

A “Most” where? 

Q That line, “in most such cases.” 

94 

A Well, “most” is the fact that they honored one 
request that I was aware of, that’s why I used the 
word. It wasn’t they weren’t honoring any. 

Q But you indicated that these people that were 
from Cambodia had travel documents? 

A I just indicated that to you now, they had expired 
travel documents. They had overstayed their visas. 
They were illegal in the country. 

Q This refers to honoring requests from the Service 
[28] for travel documents in most such cases. Is there a 
difference? 

A I made a request to the—I was representing the 
Service when I made the request of the Cambodian 
Embassy to renew the expired passport for these 
people, and I’m the one that received it. 

Q Why didn’t you indicate in your declaration that it 
involved one family? 

A I just didn’t. I didn’t. It was one family that I 
personally was aware of that I was personally involved 
with. 

Q Why didn’t you indicate in your declaration that 
this family had actually had proper travel documents to 
leave Cambodia. 

A I didn’t see it—I didn’t see a need for it. 

Q In your declaration with respect to Laos, and I 
believe it is Exhibit No. 8 and exhibit—Exhibit No. 8, 
yes. I’m sorry. Exhibit No. 7. I’m sorry, Exhibit No. 7. 

95 

Exhibit No. 7, page two, paragraph four. You 
indicate in the last sentence that, “The Laotian govern- 
ment has issued documents in the last two years for a 
Laotian family who left the People’s Republic of Laos 
with an exit visa and passport, but it has not issued 
travel documents for those who left without a [29] 
passport and exit visas.” 

You did not state those with respect to Cambodia, 
did you? 

A No, I did not. It wasn’t on my mind. I remem- 
bered it was done when I did this document. When I did 
the document on the Cambodia, it was done on 5-20-99. 
A couple years passed and it wasn’t on my mind, so I 
didn’t put it in the declaration. Had I remembered this, 
I would have placed it in the declaration. 

Q So when you completed the declaration on Exhibit 
7, 4-28-99, did that refresh your recollection of what 
happened with the Cambodian individuals? In other 
words, did you remember the Cambodia case at that 
point? 

A No. 

Q So when did you first remember this about the 
Cambodian family? 

A Upon reviewing files that I have in my office to 
see what the status was of various cases that have been 
processed through there. 

Q And what date was that? 

A That I reviewed the files? 

96 

Q Uh-huh. 

A I would say during the time I was making out the 
[30] declaration. 

MR. KLINE: I’m going to object to this line of 
questioning. The whole premise is he says on para- 
graph four in Exhibit 2 that “The government of 
Cambodia has not honored requests from the Service 
for travel documents in most such cases.” 

Somehow or other Mr. Broderick has taken “most 
such cases,” compared it to a Laotian declaration and 
wondered why it is the declarant has managed to leave 
out many further thoughts in this particular paragraph. 
And I think that the question is unfair and argumenta- 
tive. 

MR. BRODERICK: Objection noted. 

Q Did you think that in using the word “most” 
someone could be misled into thinking that there was 
more than one request? 

A Definitely not. 

Q But let’s go back to Exhibit No. 1 and Exhibit No. 

2. You indicate—take your pick. Let’s take Exhibit No. 

1. 

A Sure. You take your pick. 

Q And that will go to paragraph eight. You indicate 
that “Such alien may seek admission to a third coun- 
try.” Are you aware of any third countries who have 
accepted criminal INS aliens from deportation [31] from 
Cambodia? 

97 

A No, I am not. 

Q Why did you put it in there? 

A It’s an option to the alien at the removal hearing. 
The alien can request to go a third country, a former 
residence or possible citizenship. That’s an option open 
to the alien. That’s why I placed it in there. 

Q Is there anything that the alien can do, other than 
indicate a country to obtain travel documents from a 
third nation, that the United States government cannot 
do? 

A I don’t understand your question. 

Q In other words, the Service is attempting to get 
agreement to get travel documents from Cambodia. 
And the Service, according to you, has been meeting 
and has developed a strategy, correct? 

A Yes. 

Q And the Service hopes to put together a draft 
agreement that will eventually be presented to the 
Cambodia government, correct? 

A The Service has a draft agreement that they hope 
to present to the Cambodian government, correct. 

Q Is there anything that the individual alien can do 
to get these travel documents that the United [32] 
States government is not or cannot do? 

A Yes. 

Q What? 

98 

A Apply for it. 

Q And who does he apply to? 

A The Cambodian Embassy in Washington, D.C. 

Q And if he applies to the Cambodian Embassy and 
receives a response similar to Exhibit No. 3, is there 
anything else that that individual can do? 

MR. KLINE: Objection. Calls for speculation. 
And lack of foundation that any alien has applied to the 
Cambodian Embassy and received a response similar to 
Exhibit No. 3. 

MR. BRODERICK: Fine. 

Q Do you understand my question? Is there 
anything else the alien can do if they get a response like 
this? 

MR. KLINE: Same objection. 

MR. BRODERICK: Let me make it easier. 

Q In light of the response, particularly the first 
sentence to the paragraph, is there anything the alien 
can do? 

A Reapply. 

Q Anything else? 

MR. KLINE: I still object to the question. I [33] 
mean, there’s no showing that any individual alien— 

THE WITNESS: Reapply. 

99 

MR. KLINE: Stop.—that any individual alien has 
ever applied to the Cambodian government and gotten 
a letter back that says “The government of the United 
States of America and the Royal Government of 
Cambodia have not yet negotiated an agreement to 
cover the deportation and return of former Cambodian 
citizens to Cambodia.” 

MR. BRODERICK: Objection noted. 

Q Anything else they can do? 

A Yes. Reapply. 

Q Anything else? 

A Reapply. 

Q So the only thing they can continue to do is 
reapply. 

A Yes. 

Q Are you aware of any change in the Cambodian 
government’s position in the last 10 years? 

A I have never really looked into it as far as what 
their policies are as far as have they changed in—as far 
as what I know personally is that we have requested 
travel documents for individual cases through district 
offices, they have turned us down based on the fact 
they want a draft agreement. 

[34] Any other policy that they have or any other 
type of way of negotiating or way of getting travel 
documents I am unaware of. 

100 

Q So based upon Exhibit No. 3 and the statement in 
that letter, as well as the policy that you’ve indicated, 
would it be futile for an alien to apply individually to 
the Embassy? 

A I don’t see why they wouldn’t. 

Q My question is, do you think it would be futile? 
Do you know what that means? 

A No. Explain it to me. 

Q Would it be ineffective? Would they be unable to 
obtain travel documents by simply applying to the 
Embassy? 

A I don’t know. 

Q Do you have an opinion? 

A No. 

Q Under oath, no opinion? 

A I don’t have an opinion. I think if they apply for a 
document, they should try. 

Q You have no opinion about whether or not they 
would receive a response similar in kind to Exhibit No. 

3. 

A I can only—yeah, I would have an opinion. 

MR. KLINE: Don’t speculate. 

* * * * * 

101 

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF CALIFORNIA 

No. CIV S-98-1552 LKK JFM P 

HUNG VAN LE, PETITIONER 

v. 

IMMIGRATION AND NATURALIZATION 
SERVICE, RESPONDENT 

PETITION FOR WRIT OF HABEAS CORPUS 

DECLARATION OF JAMES G. HERGEN 

I, JAMES G. HERGEN, declare as follows: 

1. I am the Assistant Legal Adviser for East Asian 
and Pacific Affairs, Office of the Legal Adviser, United 
States Department of State, Washington, D.C. 20520, a 
position that I have held since 1992. Prior to that time, 
I occupied the position of Assistant Legal Adviser for 
Consular Affairs, since 1983. From 1974-1982, I was a 
Trial Attorney in the Office of Foreign Litigation, Civil 
Division, United States Department of Justice. I am a 
member in good standing of the District of Columbia 
Bar. 

2. My duties as Assistant Legal Adviser for Consular 
Affairs related in substantial part to the enforcement 
and administration of the immigration and nationality 
laws of the United States, including the admission of 

102 

aliens to and, as appropriate, their removal from the 
United States. Such duties included occasional com- 
munications with foreign states, including the Socialist 
Republic of Vietnam (“SRV”) to persuade them to 
accept back their nationals or former nationals. 

3. My current duties include responsibility for diverse 
legal issues that affect U.S. relations with East Asia 
(including Vietnam, Laos, and Cambodia) and the South 
Pacific region. I am personally familiar with, and have 
been a participant in, many of the efforts that have 
been undertaken by the U.S. government over the past 
decade to encourage the SRV to accept back its 
nationals who have been ordered excluded, deported, or 
removed from the U.S. 

4. I am aware that the petitioner in this matter has 
filed a petition for a writ of habeas corpus in the United 
States District Court for the Eastern District of Cali- 
fornia. The purpose of this declaration is to provide the 
court with information regarding the current status of 
U.S. efforts to negotiate an agreement with the SRV 
for the repatriation of its nationals and former nationals 
who have been so ordered excluded, deported, or re- 
moved from the U.S. (I have authorized the Depart- 
ment of Justice to use this declaration in connection 
with other, similar litigation.) 

5. This declaration is based solely and exclusively upon 
information that is known to me in the course and scope 
of the performance of my official duties. 

6. Shortly after assuming my current position in the 
early 1990’s, I visited the SRV Mission to the United 
Nations (“U.N.”) in New York, inter alia to attempt to 
persuade the SRV to accept back certain of its deport- 

103 

able nationals. The SRV’s Permanent Representative 
to the U.N. (“Permrep”) listened politely to our pres- 
entation (which was made on behalf of the Immigration 
and Naturalization Service, “INS”), but expressed 
regret that there was not very much he could do in the 
absence of relations between the U.S. and Vietnam. 
(Although I did not attend subsequent meetings with 
the SRV Permrep, I recall having “cleared” several 
sets of “talking points” on the repatriation subject for 
subsequent visits to the SRV Permrep by other 
Department of State officials.) 

7. I was personally and substantially involved in the 
planning and execution of the U.S. decisions to end the 
U.S. trade embargo against the SRV (February 1994); 
to establish “liaison offices” (January 1995); and, to 
establish diplomatic relations with the SRV (July 12, 
1995). 

8. My current recollection is that, shortly after the 
opening of “liaison offices” and the establishment of 
diplomatic relations, the Department of State invited 
the SRV Embassy to send representatives to attend a 
meeting at the Department of State with officials of the 
INS for the purpose of exploring options for the 
repatriation of SRV nationals. According to my current 
recollection, I made a brief presentation to the SRV 
officials concerning state obligations under interna- 
tional law with respect to their nationals, and INS made 
a presentation regarding the numbers of SRV nationals 
whom it wished the SRV to accept, and the modalities 
with respect to such returns. The SRV officials listened 
politely, but were noncommittal, and explained that 
they would have to transmit the INS’s information to 
the appropriate authorities in Hanoi for further analy- 

104 

sis. I believe that there may have been at least one 
follow-up meeting some time later, but that this meet- 
ing was also inconclusive. I am aware that in 1997 the 
Department of State had consulted with SRV Charge 
Thong concerning this subject, and that Charge Thong 
had expressed a willingness to negotiate some form of 
accord with the U.S. There may well also have been 
other formal and informal discussions with the SRV on 
this subject concerning which I was unaware. I can also 
say with a high degree of confidence that the SRV was 
aware that this was a serious bilateral issue for the 
U.S., and that we incorporated the subject into our 
ongoing, official discussions with Vietnamese 
authorities between 1993 and 1998. 

9. According to my current recollection, INS 
representatives approached the Department of State at 
some point in late 1997 or early 1998 to request that we 
again approach the SRV regarding the repatriation 
issue. After consulting with the Vietnam Desk, I 
informed the INS that the Department of State would 
be happy to comply with their request, and I recom- 
mended that we propose to the SRV that our two 
countries enter a formal international agreement on 
this subject. In the interests of time, however, INS 
suggested that we first propose to the SRV the nego- 
tiation of a working-level memorandum of understand- 
ing between INS and the SRV’s INS counterpart 
organization. 

10. In compliance with the INS’s request, Department 
of State officers escorted INS representatives to the 
SRV Embassy in Washington, D.C., on or about April 
13, 1998, for the purpose of making their proposal for a 
memorandum of understanding directly to SRV 

105 

Ambassador Le Bang. Ambassador Bang received the 
INS delegation, listened politely to their proposal, and 
explained that his country would only consider a more 
formal international agreement. 

11. At the request of the INS, I promptly drafted a 
proposed U.S.-SRV repatriation agreement for INS 
consideration (based upon an earlier, INS-drafted ver- 
sion), together with appropriate documentation to ob- 
tain negotiating authority under the Case-Zablocki Act, 
1 U.S.C. 112(b), and Department of State Circular 175 
(11 Foreign Affairs manual Part 720). These materials 
were circulated for appropriate clearances within the 
federal interagency process in about June, 1998. 

12. Between June, 1998, and this month, there were a 
number of communications among the Department of 
State, the Department of Justice, and the INS regard- 
ing the proposed agreement with the SRV. On or about 
July 15, I received final comments and clearances from 
the Department of Justice and INS, and immediately 
arranged to have the authorization package transmit- 
ted to the Deputy Secretary of State, who approved the 
negotiation on July 19. In addition to the SRV, the 
authority also permits the negotiation of similar agree- 
ments with Cambodia and Laos, should that be ap- 
propriate. (Note: The draft U.S.-SRV agreement and 
the accompanying authorization documents are classi- 
fied as national security information, at the “Confiden- 
tial” level, under sections 1.5(b) and (d) of E.O. No. 
12958). 

13. Depending upon scheduling considerations for U.S. 
and SRV officials, and possible consultations with 
appropriate congressional staff, we currently anticipate 
presenting the proposed repatriation agreement to the 

106 

SRV Embassy in Washington, D.C., within the next 
thirty (30) days, together with a request to hold initial 
bilateral negotiations as soon thereafter as may be 
mutually convenient. Since we now have authority to 
negotiate similar agreements with Cambodia and Laos, 
we can initiate initiatives with those states as well as 
the SRV, and I have recommended that we do so 
promptly. 

14. Because of the very nature of such negotiations, it is 
not possible to predict when they may conclude. 
However, I can state that, based upon the fact that the 
SRV has recently entered into a repatriation agree- 
ment with Canada; the general state of U.S.-SRV rela- 
tions; and, the generally receptive attitude of the SRV 
officials with whom I have dealt previously on this 
issue, I am confident of the prospects for successfully 
negotiating an agreement with the SRV. Nor am I 
aware of any reasons why we would not be able also 
successfully to negotiate such agreements with Cambo- 
dia and Laos. 

I declare under penalty of perjury, pursuant to 28 
U.S.C. § 1746, that the foregoing is true and correct to 
the best of my information, recollection, and belief. 

Executed at Washington, D.C. 
July 21, 1999 

/s/ JAMES G. HERGEN 

JAMES G. HERGEN 

107 

KINGDOM OF CAMBODIA 

[Seal Omitted] 

NATION - RELIGION - KING 

ROYAL EMBASSY OF CAMBODIA 

TO THE UNITED STATES OF AMERICA 

WASHINGTON, D.C. 

July 27, 1999 

Mr. Jay W. Stansell 
Assistant Federal Public Defender 
Western District of Washington 

Dear Mr. Stansell, 

I have the honor to acknowledge receipt of your letter 
date July 26, 1999, regarding the Travel Document of 
the former Cambodia citizen to deport from United 
States to Cambodia. I would like to inform you that the 
Royal Government of Cambodia has no extradition 
treaty with the United States. Therefore, subject must 
be detained under the law of the United States. 

Please accept the assurances of my high consideration. 

Sincerely, 

/s/ NOU HAK 

NOU HAK 
First Secretary and Consul 

108 

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 
AT SEATTLE 

No. C 99-151-L 

KIM HO MA, PETITIONER 

v. 

JANET RENO; UNITED STATES IMMIGRATION 
AND NATURALIZATION SERVICE; AND 
RICHARD SMITH, RESPONDENTS 

AFFIDAVIT OF NUALA NI MHUIRCHEARTAIGH 

STATE OF WASHINGTON ) 
COUNTY OF KING ): ss 

I, Nuala Ni Mhuircheartaigh, being duly sworn and 
upon my oath, depose and say: 

1. I am currently engaged as the Thomas Addis 
Emmett International Fellow at the Federal Public 
Defender’s Office in Seattle, WA, where I am assisting 
Jay Stansell, Assistant Federal Public Defender, and 
Jennifer Wellman, Staff Attorney, in their representa- 
tion of Mr. Kim Ho Ma. The statements in this 
declaration are based on my direct knowledge and a 
series of telephone conversations with the Consulate 
General of Cambodia in Washington, D.C. 

109 

2. On Wednesday, July 12, 1999, I engaged in a tele- 
phone conversation with the Cambodian Consul Mr. 
Nou Hak at the Consulate General of Cambodia in 
Washington, D.C. The purpose of this conversation was 
to ascertain whether any possibility existed of Cambo- 
dia issuing travel documentation for Mr. Ma and 
allowing his deportation to that State. 

3. To this end I informed Mr. Hak of the relevant 
aspects of Mr. Ma’s history as revealed by his INS A- 
file, including but not limited to, the nationality of his 
parents, his place and date of birth, his criminal 
conviction while a Permanent Resident of the United 
States, and the Final Order of Deportation to which he 
is now subject. 

4. Mr. Hak informed me that no possibility existed of 
issuance of travel documentation to Mr. Ma or any 
other Cambodian national, because at present, there is 
no formal deportation agreement between the United 
States and Cambodia. The Cambodian government has 
only one international deportation agreement, with 
Thailand, and as a result, all requests from all other 
countries for travel documents for Cambodian nationals 
who have been ordered deported, are refused. Mr. Hak 
confirmed in this regard, that he was not aware of any 
successful deportation to Cambodia from the United 
States. 

5. On Thursday, September 9, 1999, I engaged in a 
follow-up conversation with Mr. Hak concerning the 
specific case of Mr. Kim Ho Ma. Mr. Hak again con- 
firmed that at present no agreement is in place between 
the government of Cambodia and the United States, 
and that as a result, the deportation of Mr. Ma to 

110 

Cambodia is at present not possible. Mr. Ma must be 
processed under United States law, he stated. 

6. Mr. Hak also informed me that on Saturday, Sep- 
tember 4, 1999, officials of the United States State De- 
partment met with officials of the Cambodian Consulate 
with regard to the State Department’s preliminary 
proposals for a deportation agreement between the two 
states. Mr. Hak confirmed, however, that the Cambo- 
dian Government and Consulate made no input with 
regard to the proposal in question. Officials of the 
Consulate, he stated, will now send a report of the 
meeting and State Department proposals to the 
Cambodian Government for comment. Mr. Hak stated, 
however, that he cannot foretell how much time will 
pass before the Cambodian Government will pass pre- 
liminary comment on the United States State Depar- 
tment proposals. He further stated that he cannot 
foresee when any possible agreement will be concluded, 
if indeed such an agreement is ever reached. No defi- 
nite time can be stated, he emphasized, when a 
deportation agreement between the United States and 
Cambodia may be completed. 

7. The situation thus remains as heretofore, Mr. Hak 
repeated: at present, no possibility of authorization of 
removal of Mr. Ma from the United States to Cambodia 
exists, and further, he cannot predict when, if ever, 
such authorization will be forthcoming. 

111 

The foregoing is true and correct to the best of my 
knowledge, information and belief. 

DATED this 9th day of September, 1999. 

/s/ NUALI NI MHUIRCHEARTAIGH 
NUALI NI MHUIRCHEARTAIGH 

SUBSCRIBED and SWORN to before me this 9th day 
of September, 1999. 

/s/ KAREN A. CRAWFORD 

Printed Name: KAREN A. CRAWFORD 

NOTARY PUBLIC in and for the State of 
Washington, residing at Isoaquat 
My appointment expires 7/19/02 

112 

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF CALIFORNIA 

PETITION FOR WRIT OF HABEAS CORPUS 
No. CIV S-99-0302-LKK 

LE THAN GIANG, PETITIONER, 

v. 

IMMIGRATION AND NATURALIZATION SERVICE, 
RESPONDENT 

DECLARATION OF JAMES G. HERGEN 

I, JAMES G. HERGEN, declare as follows: 

1. I am the Assistant Legal Adviser for East Asian and 
Pacific Affairs, Office of the Legal Adviser, United 
States Department of State, Washington, D.C., 20520, a 
position that I have held since 1992. Prior to that time, I 
occupied the position of Assistant Legal Advisor for 
Consular Affairs, since 1983. From 1974-1982, I was a 
Trial Attorney in the Office of Foreign Litigation, Civil 
Division, United States Department of Justice. I am a 
member in good standing of the District of Columbia 
Bar. 

2. My duties as Assistant Legal Adviser for Consular 
Affairs related in substantial part to the enforcement 
and administration of the immigration and nationality 
laws of the United States, including the admissions of 
aliens to and, as appropriate, their removal from the 

113 

United States. Such duties included occasional com- 
munications with foreign states, including the Socialist 
Republic of Vietnam (“SRV”) to persuade them to 
accept back their nationals or former nationals. 

3. My current duties include responsibility for diverse 
legal issues that affect U.S. relations with East Asia 
(including Vietnam, Laos, and Cambodia) and the South 
Pacific region. I am personally familiar with, and have 
been a participant in, many of the efforts that have 
been undertaken by the U.S. government over the past 
decade to encourage the SRV to accept back its 
nationals who have been ordered excluded, deported, or 
removed from the U.S. 

4. I am aware that the petitioner in this matter has filed 
a petition for writ of habeas corpus in the United States 
District Court for the Eastern District of California. 
The purpose of this declaration is to provide the court 
with information regarding the current status of U.S. 
efforts to negotiate an agreement with the SRV, 
Cambodia, and Laos for the repatriation of their 
nationals and former nationals who have been so 
ordered excluded, deported, or removed from the U.S. 
(I have authorized the Department of Justice to use this 
declaration in connection with other, similar litigation.) 

5. This declaration is based solely and exclusively upon 
information that is known to me in the course and scope 
of the performance of my official duties. 

6. Shortly after assuming my current position in the 
early 1990’s, I visited the SRV Mission to the United 
Nations (“U.N.”) in New York, inter alia to attempt to 
persuade the SRV to accept back certain of its 

114 

deportable nationals. The SRV’s Permanent Repre- 
sentative to the U.N. (“Permrep”) listened politely to 
our presentation (which was made on behalf of the 
Immigration and Naturalization Service (“INS”)) but 
expressed regret that there was not very much he 
could do in the absence of relations between the U.S. 
and Vietnam. (Although I did not attend subsequent 
meetings with the SRV Permrep, I recall having 
“cleared” several sets of “talking points” on the 
repatriation subject for subsequent visits to the SRV 
Permrep by other Department of State officials.) 

7. I was personally and substantially involved in the 
planning and execution of the U.S. decisions to end the 
U.S. trade embargo against the SRV (February 1994); 
to establish “liaison offices” (January 1995); and, to 
establish diplomatic relations with the SRV (July 12, 
1995). 

8. My current recollection is that, shortly after the 
opening of “liaison offices” and the establishment of 
diplomatic relations, the Department of State invited 
the SRV Embassy to send representatives to attend a 
meeting at the Department of State with officials of the 
INS for the purpose of exploring options for the re- 
patriation of SRV nationals. According to my current 
recollection, I made a brief presentation to the SRV 
officials concerning state obligations under inter- 
national law with respect to their nationals, and INS 
made a presentation regarding the numbers of SRV 
nationals whom it wished the SRV to accept, and the 
modalities with respect to such returns. The SRV 
officials listened politely, but were noncommittal, and 
explained that they would have to transmit the INS’s 
information to the appropriate authorities in Hanoi for 

115 

further analysis. I believe that there may have been at 
least one follow-up meeting some time later, but that 
this meeting was also inconclusive. I am aware that in 
1997 the Department of State had consulted with SRV 
Chargé Thong concerning this subject, and that Chargé 
Thong has expressed a willingness to negotiate some 
form of accord with the U.S. There may well also have 
been other formal and informal discussions with the 
SRV on this subject concerning which I was unaware. I 
can also say with a high degree of confidence that the 
SRV was aware that this was a serious bilateral issue 
for the U.S., and that we incorporated the subject into 
our ongoing, official discussions with Vietnamese 
authorities between 1993 and the present. 

9. According to my current recollection, INS repre- 
sentatives approached the Department of State at some 
point in late 1997 or early 1998 to request that we again 
approach the SRV regarding the repatriation issue. 
After consulting with the Vietnam Desk, I informed the 
INS that the Department of State would be happy to 
comply with their request, and I recommended that we 
propose to the SRV that our two countries enter a 
formal international agreement on this subject. In the 
interests of time, however, INS suggested that we first 
propose to the SRV the negotiation of a working-level 
memorandum of understanding between the INS and 
the SRV’s INS counterpart organization. 

10. In compliance with the INS’s request, Depart- 
ment of State officers escorted INS representatives to 
the SRV Embassy in Washington, D.C., on or about 
April 13, 1998, for the purpose of making their proposal 
for a memorandum of understanding directly to SRV 
Ambassador Le Bang. Ambassador Bang received the 

116 

INS delegation, listened politely to their proposal, and 
explained that his country would only consider a more 
formal international agreement. 

11. At the request of the INS, I promptly drafted a 
proposed U.S.-SRV repatriation agreement for INS 
consideration (based upon an earlier, INS-drafted ver- 
sion), together with appropriate documentation to 
obtain negotiating authority under the Case-Zablocki 
Act, 1 U.S.C. 112(b), and Department of State Circular 
175 (11 Foreign Affairs manual Part 720). These 
materials were circulated for appropriate clearances 
within the federal interagency process in about June, 
1998. 

12. Between June, 1998, and this July, 1999, there 
were a number of communications among the Depart- 
ment of State, the Department of Justice, and the INS 
regarding the proposed agreement with the SRV. On 
or about July 15, 1999, I received final comments and 
clearances from the Department of Justice and INS, 
and immediately arranged to have the authorization 
package transmitted to the Deputy Secretary of State, 
who, on July 19 approved the opening of formal negotia- 
tions with the SRV, Cambodia, and Laos concerning the 
proposed agreements. 

13. On or about August 24, we obtained from the 
Department’s Office of Translation Services transla- 
tions of the U.S. negotiating draft into the Vietnamese, 
Khmer, and Laotian languages. 

14. On September 1, U.S. representatives (including 
the undersigned) presented the U.S. negotiating drafts, 
and accompanying translations, to the Ambassadors of 

117 

Laos (Ambassador Vang Rattanavong) and the SRV 
(Ambassador Le Bang), in Washington, D.C. On 
September 2, we presented a copy of the negotiating 
draft, and accompanying Khmer translation, to the 
Cambodian Chargé (Counselor Tan Vunyaung) in 
Washington, D.C. In each case, we made an extensive 
presentation regarding the importance of the issue to 
the aliens detained in INS custody, as well as to the 
bilateral relations of the U.S. and the country con- 
cerned, and requested the Ambassador (or, in the case 
of Cambodia, the Chargé) promptly to inform his 
government of our presentation and to provide us with 
a preliminary position within 30-60 days. Inde- 
pendently, we have provided copies of the draft 
agreements to our embassies in Hanoi, Phnom Penh, 
and Vientiane, and we intend to request each of the 
three governments to receive a U.S. delegation for 
preliminary negotiations in November, or as soon 
thereafter as possible. 

15. Because of the very nature of such negotiations, it 
is not possible to predict when they may conclude. 
However, I can state that, based upon the fact that the 
SRV has recently entered into a repatriation agree- 
ment with Canada; the general state of U.S.-SRV re- 
lations; the fact that the SRV currently accepts at least 
some of its deportable nationals from Canada, Sweden, 
and other states; and, the generally receptive attitude 
of the SRV officials with whom I have dealt previously 
on this issue, I am confident of the prospects for suc- 
cessfully negotiating an agreement with the SRV. Nor 
am I aware of any reasons why we would not be able 
also successfully to negotiate such agreements with 
Cambodia and Laos. 

118 

I declare under penalty of perjury, pursuant to 28 
U.S.C. §1746, that the foregoing is true and correct to 
the best of my information, recollection, and belief. 

Executed at Washington, D.C., 
September 15, 1999 

/s/ JAMES G. HERGEN 

JAMES G. HERGEN 

119 

U.S. Department of Justice 
Order of Supervision 

Immigration and 

Naturalization Service 

File No: A27 365 395 
_ 

Date: October 25, 1999 

Name MA, Kim Ho 
20702 113 PL S.E. Kent, WA 

98031 ph# (253) 856-188X 
On 10/26/1998, you were ordered: 

o Excluded or deported pursuant to proceedings 
commenced prior to April 1, 1997. 

x Removed pursuant to proceedings commenced 
on or after April 1, 1997. 

Because the Service has not effected your deportation 
or removal during the period prescribed by law, it is 
ordered that you be placed under supervision and 
permitted to be at large under the following conditions: 

x That you appear in person at the time and place 
specified, upon each and every request of the 
Service, for identification and for deportation or 
removal. 

x That upon request of the Service, you appear 
for medical or psychiatric examination at the 
expense of the United States Government. 

x That you provide information under oath about 
nationality, circumstances, habits, associations, 
and activities and such other information as the 
Service considers appropriate. 

120 

x That you do not travel outside Washington 

State for more than 48 hours without first 
having notified this Service office of the dates 
and places of such proposed travel. 

x That you finish written notice to this Service 
office of any change of residence or employment 
within 48 hours of such change. 

x That you report in person on the 10th day of 
each month to this Service office at: 

US INS 815 Airport Way South, Seattle, WA 
3rd floor Deportation Section 

unless you are granted written permission to 
report on another date. 

x That you assist the Immigration and Naturali- 
zation Service in obtaining any necessary travel 
documents. 

x Other : 

If the 10th day falls on a holiday or weekend, 
report the next business day 

x See attached sheet containing other specified 
conditions (Continue on separate sheet if 
required) 

[photographs GEORGE L. MORONES 

fingerprint (Signature of INS official) 

omitted] 

George L. Morones, ADD/DDP 
(Print name and title of INS official) 

121 

_______________________________________________ 
Alien’s Acknowledgment of Conditions of Release 
under an Order of Supervision 

I hereby acknowledge that I have (read) (had inter- 
preted and explained to me in the English language) 
the contents of this order, a copy of which has been 
given to me. I understand that failure to comply with 
the term of this order may subject me to a fine, 
detention, or prosecution. 

[ILLEGIBLE]_______________________ 

(Signature of INS official serving order) 

KIM HO MA______ 
10-25-99 

(Signature of INS alien) (Date) 

122 

Attachment to Order of Supervision for Kim Ho MA/ 
A27 365 395 
Dated October 25, 1999 at Seattle, WA. 

The following conditions are imposed in addition to 
those listed on the face page of the I220B 

l You will report to INS office at: 

815 Airport Way South, Seattle, WA 98134 

Detention and Deportation Section 3 

rd Floor 

10 

th day of each month 

You will give this document to the person who meets 
you at the counter. You may also be ordered in writing 
to report for special interview outside that schedule. 
At any time you will be expected to answer questions 
about your employment, activities and associations. 

l You will assist the Immigration Service in ob- 
taining a travel document to return to your 
country by providing any information required, or 
corresponding or speaking with your consul. 

l You will not associate with a gang of any sort, nor 
will you associate with gang members. 

l You will not possess or use illegal drugs, nor will 
you knowingly associate with anyone who does. 

l You will not possess or use any firearm. 

You will abide by all laws. If you are arrested for any 
reason you must report the arrest to a deportation 
officer within 48 hours of the arrest. You, or someone 
acting for you, will do so by calling (206) 553-5948 and 
providing the person who answers with the following 
information: 

123 

_ your name and A number; 
_ the date and time of the arreast; 
_ the reason you were arrested; and 
_ the name of the department or agency that 
arrested you. 

Failure to report an arrest within 48 hours may 
result in your being rearrested by INS and placed back 
into custody. 

If you are arrested an INS officer will 
contact the department that arrested you and 
obtain a copy of the arrest report. He may 
interview the officer who arrested you. He 
will determine the circumstances of the 
arrest, then he will present his findings to the 
Assistant District Director of Detention and 
Deportation (ADDD). The ADDD will deter- 
mine if, in his judgment, you have become a 
threat to public safety or a flight risk. 
Depending on his findings, he may change 
the conditions of your supervision, or he may 
order that you be brought back into INS 
custody at the earliest possible moment. 

l You will immediately surrender to an officer of 
this Service for deportation upon being ordered 
to do so. 

Any departure from the United States, regardless of 
purpose of duration, executes your deportation: you will 
not be allowed to return to this country. 

These conditions are in effect as long as you are at large 
in the United States. 

124 

NOTHING FURTHER 

GEORGE L. MORONES 
KIM HO MA 

George L. Morones 
Alien—Signature 

Assistant District Director/ 

Detention & Deportation 

125 

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF WASHINGTON 
AT SEATTLE 

No. C-99-1363R 

BUNNY VATH, PETITIONER 

v. 

JANET RENO, ATTORNEY GENERAL, 
ET AL., RESPONDENTS 

PETITION FOR WRIT OF HABEAS CORPUS 

SUPPLEMENTAL DECLARATION OF 
JAMES G. HERGEN 

1. This declaration supplements my previous declara- 
tions of July 21 and September 15, 1999, in related 
cases regarding the same issue. 

2. As noted in my previous declarations, I have been 
personally involved in ongoing efforts to encour- 
age the governments of Cambodia, Laos, and Viet- 
nam to accept back their nationals who have been 
ordered excluded, deported, or removed from the 
U.S. 

3. Today, I was informed that this Honorable Court 
has granted the petition for writ of habeas corpus 
filed by Mr. Vath, and has ordered that Mr. Vath 
be released from immigration custody. In light of 

126 

this order, the Department of Justice asked me to 
provide an urgent update concerning the ongoing 
diplomatic efforts by the U.S. government to 
encourage the Royal Government of Cambodia 
(“RGC”) to take back Cambodian nationals who 
have been ordered excluded, deported, or re- 
moved from the U.S. (I have authorized the 
Department of Justice to use this declaration in 
connection with other, similar pending litigation in 
the federal courts.) 

4. As noted in my declaration of September 15, a 
high-level delegation of officials from the Depart- 
ment of State, the Immigration and Naturalization 
Service (INS), and the Department of Justice 
made an extensive, formal presentation to the 
Cambodian Charge d’Affairs, Counselor Tan 
Vunyanug, on September 2, presented him with a 
draft agreement, and asked him to have his gov- 
ernment provide us with a preliminary response to 
our request for negotiation within 60 days. Inde- 
pendently, we instructed our Embassy in Phnom 
Penh to make a parallel overture to the RGC in 
Cambodia. 

5. On November 10, the Department of State sent a 
follow-up cable to our Embassy in Phnom Penh, in 
which we instructed our Embassy to request the 
RGC to receive a U.S. delegation as early in the 
New Year as possible, so that we could begin de- 
tailed negotiations with a view towards resolving 
this in a mutually satisfactory manner. Although 
the RGC has not yet answered us formally, our 
Embassy in Phnom Penh has informed us infor- 
mally that the RGC will presumably be willing to 

127 

meet with U.S. negotiators in early 2000, when a 
U.S. delegation is scheduled to travel to the region 
for talks with Vietnam and Laos. 

6. Moreover, I am particularly encouraged by other 
positive developments with respect to Cambodia 
over the past month. On October 21, the Deputy 
Director of the Department of State’s Office of 
Burma, Cambodia, Laos, Thailand, and Vietnam 
Affairs (EAP/BCLTV) met with the new Cam- 
bodian Ambassador to the U.S., The Honorable 
Roland Eng, inter alia to discuss issues related to 
the proposed repatriation agreement. Ambassador 
Eng expressed an exceptionally positive attitude, 
and undertook to dispatch Cambodian consular 
officers to interview detainees whom the INS 
identifies as Cambodian nationals. On November 
16, EAP/BCLTV sent Ambassador Eng a list of 
detained Cambodians, and provided him with the 
name of an INS contact person who can facilitate 
such travel to the detainees. This is the first of the 
three countries to make such an undertaking, and 
we view this initiative as both a sign of RGC good 
faith and a significant step forward. 

7. While it is extremely difficult to predict the ulti- 
mate outcome of such delicate diplomatic negotia- 
tions, based on my personal involvement and my 
various communications with senior U.S. officials, 
I am increasingly sanguine about the prospects for 
achieving a mutually satisfactory arrangement on 
this issue between the U.S. and the RGC. 

128 

I declare under penalty of perjury, pursuant to 28 
U.S.C. § 1746, that the foregoing is true and correct to 
the best of my information and belief. 

Executed at Washington, D.C. 
November 17, 1999 

/s/ JAMES G. HERGEN 

JAMES G. HERGEN 

129 

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF 
WASHINGTON AT SEATTLE 

No. C 99-1363R 

BUNNY VATH, PETITIONER 

v. 

JANET RENO, ATTORNEY GENERAL, 
ET AL., RESPONDENTS 

PETITION FOR WRIT OF HABEAS CORPUS 

SUPPLEMENTAL DECLARATION OF 
JAMES G. HERGEN 

This declaration supplements my previous declarations 
of July 21, September 15, and November 17, 1999, in 
this and related cases regarding the same issue. 

1. As noted in my previous declarations, I have been 
personally involved in ongoing efforts to encourage 
the governments of Cambodia, Laos, and Vietnam 
to accept back their nationals who have been 
ordered excluded, deported, or removed from the 
U.S. 

2. This declaration, which I have prepared at the 
request of the Department of Justice, provides an 
update concerning recent developments in the 
ongoing diplomatic efforts by the U.S. government 

130 

to encourage the Royal Government of Cambodia 
(“RGC”) and the Lao People’s Democratic Republic 
(“LPDR”) to take back Cambodian and Laotian na- 
tionals who have been ordered excluded, deported, 
or removed from the U.S. (I have authorized the 
Department of Justice to use this declaration in 
connection with other, similar pending litigation in 
the federal courts). 

3. As noted in my declaration of September 15, a high- 
level delegation of officials from the Department of 
State, the Immigration and Naturalization Service 
(INS), and the Department of Justice made an 
extensive, formal presentation to the Cambodian 
Charge d’Affairs, Counselor Tan Vunyanug, on 
September 2, presented him with a draft agree- 
ment, and asked him to have his government pro- 
vide us with a preliminary response to our request 
for negotiations within 60 days. On September 1, 
we made a similar presentation and request to 
Laotian Ambassador, Vang Rattanavong. Inde- 
pendently, we instructed our Embassies in Phnom 
Penh and Vientiane to make parallel overtures to 
the appropriate host country authorities in Cambo- 
dia and Laos. 

4. On November 10, the Department of State sent a 
follow-up cable to our Embassies in Phnom Penh 
and Vientiane, instructing them to request the host 
governments to receive a U.S. delegation as early 
in the New Year as possible. 

5. In my supplemental declaration of November 17, I 
also reported concerning several other positive 
developments that encouraged me in my belief that 
the RGC will cooperate with the U.S. in achieving a 
mutually satisfactory resolution to this issue. 

131 

6. Shortly after I filed my supplemental declaration of 
November 17, our Embassies in Phnom Penh and 
Vientiane reported that both the RGC and the 
LPDR will likely receive a U.S. delegation early in 
the New Year, as we have requested. (The 
Department of State is continuing its efforts to 
arrange with the Socialist Republic of Vietnam 
(“SRV”) a mutually acceptable date early in the 
New Year for discussions on this issue. Our 
objective is to arrange a date with the SRV that 
will permit the U.S. negotiating team to visit all 
three countries during a single visit to the region. 
I shall report to the court regarding the status of 
these efforts on or before January 11, 2000, as 
directed in the Court’s Order of November 12, 
1999, in the case of Thong Vi Duong v. Reno, No. 
C99-930R (W.D. Wash.). 

7. The U.S. considers the foregoing developments to 
be significant, positive steps in the negotiating 
process, and as particular signs of sincerity and 
good faith on the part of the RGC and LPDR. 

I declare under penalty of perjury, pursuant to 28 
U.S.C. § 1746, that the foregoing is true and correct to 
the best of my information and belief. 

Executed at Washington, D.C. 
November 26, 1999 

/s/ JAMES G. HERGEN 

JAMES G. HERGEN 

132 

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 
AT SEATTLE 

No. C 99-1294C 

TINH VINH TRUONG, PETITIONER 

v. 

IMMIGRATION AND NATURALIZATION SERVICE, 
RESPONDENTS 

AFFIDAVIT OF HEATHER LYNN WINSLOW 

STATE OF WASHINGTON COUNTY OF KING: ss 

I, Heather Lynn Winslow, being duly sworn and 
upon my oath, depose and say: 

1. I am currently engaged as a Research Attorney at 
the Federal Public Defender’s Office in Seattle, WA, 
where I am assisting Jay Stansell, Assistant Federal 
Public Defender, and Jennifer Wellman, Staff Attorney, 
in their representation of Mr. Tinh Vinh Truong. The 
statements in this declaration are based on my direct 
knowledge and conversations with the Embassy and 
Consulate of Vietnam. 

2. On Wednesday, December 1, 1999, I engaged in a 
telephone conversation with Mr. Ly at the Embassy of 
Vietnam, in Washington, D.C. 

The purpose of this 
conversation was to ascertain whether there was any 

133 

possibility that Vietnam would issue travel documenta- 
tion for Mr. Truong in the foreseeable future. 

3. Mr. Ly informed me that there is no possibility that 
Vietnam will issue travel documents for Mr. Truong, or 
any other individual ordered deported from the United 
States, until the two countries reach a formal repatria- 
tion agreement. 

4. According to Mr. Ly, Vietnam and the United 
States do not presently have a repatriation agreement 
under which Vietnam will accept persons ordered 
deported from the United States. Mr. Ly stated that 
negotiations between the United States and Vietnam 
have recently begun, but he is unable to predict when a 
repatriation agreement may be reached. 

5. I asked Mr. Ly whether the recent negotiations 
between Vietnam and Canada could provide some 
indication of how long it may take for the United States 
and Vietnam to reach a similar repatriation agreement. 
He stated that it could not. According to Mr. Ly, the 
negotiations for reaching such an agreement involve 
extended discussions between the two countries, and 
the process may vary from situation to situation, 
depending on the particular issues raised by the party 
countries. 

6. Mr. Ly stated that he is aware of the draft repatria- 
tion agreement which the United States recently 
submitted to Vietnam. However, he indicated that 
after the draft has been presented to the Vietnamese 
government, there is no way to predict how long it may 
take for the government to respond. He further stated 
that no one could now predict the total length of the 
process because it depends entirely on the number of 
issues each country raises and how long the respective 
governments take to respond to the other’s issues. 

134 

The foregoing is true and correct to the best of my 
knowledge, information and belief. 

DATED this 2nd day of December, 1999. 

/s/ HEATHER LYNN WINSLOW 

HEATHER LYNN WINSLOW 

SUBSCRIBED AND SWORN to before me this 2d day of 
December, 1999. 

/s/ LYNN SHAMULKA 

Printed Name: 

LYNN SHAMULKA 

NOTARY PUBLIC in and for the State of 
Washington, residing at Seattle, WA 
My appointment expires 5/19/02 

135 

IN THE UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF CALIFORNIA 

Case No. CIV-98-1568 DFL JFM P 

THAN DUC TRAN, PETITIONER 

v. 

IMMIGRATION AND NATURALIZATION SERVICE, 
RESPONDENTS 

PETITION FOR WRIT OF HABEAS CORPUS 

SUPPLEMENTAL DECLARATION OF 
JAMES G. HERGEN 

1. This declaration supplements my previous declara- 
tions of July 21, September 15, November 17, and 
26, 1999 and January 7, 2000, in this and related 
cases. 

2. I have been personally involved in ongoing efforts 
to encourage the governments of Cambodia, Laos, 
and Vietnam to accept back their nationals who 
have been ordered excluded, deported, or other- 
wise removed from the U.S. by lawful authority. 

3. The Department of Justice has requested that I 
provide this further supplemental declaration in 
order to describe the current status of the ongoing 
diplomatic efforts by the U.S. government to 
encourage the governments of Vietnam, Cambo- 

136 

dia, and Laos to take back their nationals who 
have been ordered excluded, deported, or removed 
from the U.S. 

4. I have authorized the Department of Justice to use 
this declaration in connection with similar pending 
litigation in this and other federal courts. 

5. A high level delegation of Department of State, 
Department of Justice, and Immigration and 
Naturalization (INS) officials traveled to Phnom 
Penh, Cambodia; Hanoi, Vietnam; and Vientiane, 
Laos between February 25 and March 8, 2000 to 
discuss the repatriation of Cambodian, Vietnam- 
ese, and Laotian nationals currently in the U.S. 
who have been ordered removed to those coun- 
tries after undergoing immigration proceedings. I 
was a member of the U.S. delegation, and this 
declaration is based upon my personal knowledge. 

6. The U.S. delegation held discussions with the 
Cambodian government for approximately six 
hours on February 28 and 29; with the Vietnamese 
government for approximately six hours on March 
3; and with the Laotian government for approxi- 
mately two hours on March 6. 

7. All three governments were represented by high- 
level officials from their respective Ministries of 
Foreign Affairs. In addition, the Vietnamese 
delegation included high-level officials from the 
Ministry of Justice and the Ministry of Public 
Security, and the Cambodian delegation included 
high-level officials from the Ministry of Interior. 
Our discussions with all three countries were 
frank, constructive, and positive in both tone and 
substance. The U.S. side stressed the importance 
and urgency that our government attaches to the 

137 

repatriation issue. The delegations of all three 
countries evinced an apparently sincere desire to 
work constructively with the U.S. to resolve the 
repatriation issue in the interest of improved 
bilateral relations. 

8. The talks focused primarily on describing how the 
U.S. deals with similar issues with other countries; 
on explaining how the repatriation process works 
in the U.S.; and on eliciting from the three foreign 
governments what information their authorities 
might require about potential individual returnees 
before they would issue appropriate travel docu- 
ments. The U.S. side made specific proposals con- 
cerning the implementation of repatriation agree- 
ments and invited the foreign governments to 
send teams to the U.S. for the purpose of consult- 
ing with INS officials to better understand the 
procedures involved in the removal of aliens from 
this country. All three governments agreed to 
respond to us in the near future regarding further 
discussions. We have already received prelimi- 
nary advice from our Embassy in Vientaine that 
the Government of Laos is prepared to invite 
another U.S. delegation back for further, more 
detailed discussions as early as April or May. The 
Department of State is attempting to confirm 
whether it will be possible to coordinate further 
discussions with Vietnam and Cambodia during 
the same time frame. 

9. Based upon what I saw and heard during the 
above-described discussions in Hanoi, Phnom 
Penh, and Vientiane, I am genuinely and increas- 
ingly encouraged that all three countries are inter- 
ested in achieving agreements with the United 
States in the foreseeable future that will normalize 
our bilateral immigration procedures as they af- 

138 

fect the repatriation of nationals. I also believe 
that all three countries are acting in good faith, 
and that they are sincerely interested in establish- 
ing a process that will facilitate a prompt and thor- 
ough examination of each case on its individual 
merits. 

I declare under penalty of perjury that the foregoing is 
true and correct to the best of my information and 
belief. 

Executed at Washington, D.C. 
March 23, 2000 

/s/ JAMES G. HERGEN 

JAMES G. HERGEN 
Assistant Legal Adviser for 

East Asian & Pacific Affairs 
United States Department 
of State 

139 

SUPREME COURT OF THE UNITED STATES 

No. 00-38 

JANET RENO, ATTORNEY GENERAL, ET AL., 
PETITIONERS 

v. 

KIM HO MA, RESPONDENT 

Oct. 10, 2000 

Case below, 208 F.3d 815. 

Motion of Washington Legal Foundation, et al., for 
leave to file a brief as amici curiae granted. Motion of 
respondent for leave to proceed in forma pauperis 
granted. Petition for writ of certiorari to the United 
States Court of Appeals for the Ninth Circuit granted. 
Case consolidated with No. 99-7791, Zadvydas v. 
Underdown, — U.S. —, 121 S. Ct. 297, — L.Ed.2d — 
(2000), and a total of one hour is allotted for oral 
argument.