UNITED STATES DEPARTMENT OF HOMELAND SECURITY CITIZENSHIP AND IMMIGRATION SERVICES
ASYLUM OFFICE ARLINGTON, VIRGINIA 1525 WILSON BOULEVARD ARLINGTON, VA 280598-2500
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In the Matter of: )
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Nie Sieng, Y’Blo )
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BRIEF IN SUPPORT OF APPLICANT’S APPLICATION FOR ASYLUM:
Please review the following memorandum of law, which is respectfully submitted in support of Mr. Y’Blo Nie Sieng’s application for asylum. Upon careful consideration, please conclude that Mr. Nie Sieng meets the definition of a refugee and is statutorily eligible for asylum.
I. Mr. Nie Sieng Meets the Definition of a Refugee:
Pursuant to INA § 208(b)(1), Mr. Nie Sieng is entitled to a grant of asylum because he meets the definition of a refugee in accordance with INA § 101(a)(42)(A). Mr. Nie Sieng is outside of the Socialist Republic of Vietnam, currently residing in Greensboro, North Carolina, and is unwilling and unable to return to his country of origin because he fears for his life and safety there. Mr. Nie Sieng has suffered past persecution on account of imputed political
opinions, including arbitrary and prolonged detentions, interrogations, forced labor, exhaustion, and threats, which have caused him to live in a constant state of fear. Mr. Nie Sieng also has a well-founded fear of future persecution should he be forced to return to Vietnam on account of an actual political opinion, based upon his recent revelation of past military experiences to the Provincial Chief of Police.
II. Mr. Nie Sieng Has Suffered Persecution at the Hands of the Vietnamese Government:
The Board of Immigration Appeals defined persecution as “harm or suffering inflicted upon an individual in order to punish the individual for possessing a belief or characteristic the
entity inflicting the harm or suffering seeks to overcome.”i Federal Immigration Courts agree,
defining persecution as “the infliction of suffering or harm upon those who differ . . . in a way
regarded as offensive.”ii
Mr. Nie Sieng has suffered persecution at the hands of the Vietnamese government on account of his political opinion, both imputed and actual, and is thereby statutorily entitled to a presumption of future persecution pursuant to 8 C.F.R. § 208.13(b)(1).
A. Mr. Nie Sieng Holds a “Political Opinion”
Mr. Nie Sieng holds an imputed political opinion because the Vietnamese government perceived that he worked for the American Central Intelligence Agency (“CIA”) and was a member of the opposition movement, the United Front for the Liberation of Oppressed Races (“FULRO”). In addition, Mr. Nie Sieng’s deliberate choice to fight against the North Vietnamese Communists and the communist movement when he enlisted with United States Army Special Forces and served as a security contractor for World Wide Development Company, Inc., during
the Vietnam War, establishes his political opinion, which he expressed to a Vietnamese authority once he was in the United States
1. Mr. Nie Sieng Holds an “Imputed Political Opinion” Within the Meaning
of INA § 101(a)(42)(A):
The Vietnamese government targeted Mr. Nie Sieng for persecution because of imputed political opinions that he worked for the CIA and was a member of FULRO during and after the Vietnam War. As such, Mr. Nie Sieng holds an imputed political opinion within the meaning of INA § 101(a)(42)(A).
The doctrine of imputed political opinion focuses on the persecutor’s perception of the
applicant.iii In essence, the persecution inflicted upon the applicant because the persecutor
attributed a characteristic connected to one of the five protected grounds – race, religion, nationality, membership in a particular social group, or political opinion – constitutes persecution on account of that characteristic regardless of whether that applicant possessed the
characteristic.iv An imputed political opinion may also involve the persecutor’s attribution of an
opinion to the applicant based on the applicant’s involuntary association with an opposition or
guerilla group.v
During his detentions at a re-education camp and provincial police station, Vietnamese government officials and provincial police officers repeatedly accused Mr. Nie Sieng of working for the CIA and being a member of FULRO, claims he wholeheartedly denied.
Vietnamese government officials, while conducting the interrogations, repeatedly accused him of working for the CIA and being a member of FULRO. These organizations were aligned against the North Vietnamese Communist forces during the Vietnam War. The officials also referred to Mr. Nie Sieng during the interrogations as a “former regime member,” an “anti-communist,” and an “American.” In addition, the other prisoners arrested and detained in the
re-education camp revealed that similar anti-regime accusations and references were levied against them as well.
Accordingly, Mr. Nie Sieng has suffered from political opinions the Vietnamese government imputed upon him. Therefore, he holds a political opinion within the meaning of INA § 101(a)(42)(A).
2. Mr. Nie Sieng Holds an “Actual Political Opinion” Within the Meaning
of INA § 101(a)(42)(A):
Mr. Nie Sieng expressed his political opinion when he deliberately chose to enlist with the United States Army Special Forces and to serve as a security contractor for World Wide Development Company, Inc. against the North Vietnamese Communist regime during the Vietnam War. Although Mr. Nie Sieng went to great lengths to conceal his past experiences in hopes of escaping reprisals from the Communists, his actions were “at least one central reason”
for the persecution he suffered at the hands of the Vietnamese government.vi In addition, Mr. Nie
Sieng expressed his political opinion when he revealed his past military experiences against the North Vietnamese Communists to the Provincial Chief of Police.
B. Mr. Nie Sieng Suffered Past Persecution on Account of His Imputed Political
Opinions:
As previously stated, the Board of Immigration Appeals defined persecution as “harm or suffering inflicted upon an individual in order to punish the individual for possessing a belief or
characteristic the entity inflicting the harm or suffering seeks to overcome.”vii
Mr. Nie Sieng has suffered past persecution at the hands of the Vietnamese government in the forms of: (1) an arbitrary and prolonged detention, and exhaustion and physical harm in a re-education camp; (2) interrogations at the provincial police station; and (3) the receipt of threats
over a prolonged period of time which have caused Mr. Nie Sieng to live in a state of constant fear. The persecution and harm is detailed in Mr. Nie Sieng’s attached affidavit, but the key elements are summarized below.
First, Mr. Nie Sieng suffered past persecution when he was arbitrarily arrested and detained for a period of seven months in a re-education camp, during which he suffered from severe dehydration, starvation, and malnourishment throughout his detention. Arbitrary and
prolonged detention is a core human rights violation.viii Detention rises to the level of persecutory
harm if it is prolonged or aggravated by other factors, such as serious physical abuse or other
egregious conditions of confinement.ix Additionally, the BIA has found that persecution
encompasses more than physical harm and may include non-physical harm, such as “the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food,
housing, employment, or other essentials of life.”x As a result of severe dehydration, starvation,
and malnourishment throughout his detention, Mr. Nie Sieng lost a substantial amount of weight – approximately 25 kilograms. In addition, Mr. Nie Sieng was subjected to grueling interrogations conducted by government officials. These interrogations were emotionally draining and left Mr. Nie Sieng in a constant state of fear that he would be harmed. Accordingly, the lack of adequate nutrition, the violation of his personal liberties, and the constant state of fear over a prolonged period establishes past persecution.
Second, Mr. Nie Sieng suffered past persecution when he was summoned, detained, and interrogated at the provincial police station. Serious threats made against the applicant may constitute persecution depending upon the circumstances and context, even if the applicant was
never physically harmed.xi In addition, threats of torture or imminent death may constitute
persecutory harm.xii Here, following his release from the re-education camp, the Vietnamese
government continued to monitor Mr. Nie Sieng. On four separate occasions, provincial police officers interrogated Mr. Nie Sieng and threatened to use an electric chair if he failed to cooperate or answer all of their questions. On one occasion, an officer threatened Mr. Nie Sieng with death,
stating, “You will die in an electric chair as soon as we get evidence that you worked for the United States.” Accordingly, the threats levied against Mr. Nie Sieng during his interrogations at the provincial police station establishes past persecution.
Finally, the receipt of multiple threats caused Mr. Nie Sieng to live in a constant state of fear. The USCIS Asylum Office has explained that “receipt of threats over a prolonged period of time, causing the applicant to live in a state of constant fear” can rise to the level of persecutory
harm.xiii Here, Mr. Nie Sieng received threats against his personal liberties and life since he was
arrested and detained in the re-education camp in July 1975. Living in a constant state of fear for over thirty-eight years establishes past persecution.
This history of appalling treatment by the Vietnamese government represents the infliction of persecution, suffering, and harm to Mr. Nie Sieng’s basic human rights, and rises to the level of persecution consistent with the BIA and court definitions cited above. Since Mr. Nie Sieng suffered past persecution, he is statutorily entitled to the presumption of future persecution pursuant to 8 C.F.R. § 208.13(b)(1).
C. Mr. Nie Sieng Has a Well-Founded Fear of Future Persecution:
Mr. Nie Sieng also has a well-founded fear of future persecution should he be forced to return to Vietnam. Mr. Nie Sieng can demonstrate a well-founded fear of future persecution on account of: (1) his revelation of past military experiences to the Provincial Chief of Police; (2) the treatment of similarly situated individuals; and (3) Vietnam’s country conditions.
First, Mr. Nie Sieng can demonstrate a well-founded fear of future persecution based on his recent revelations to the Provincial Chief of Police that he worked for the United States Army Special Forces and was a security contractor for World Wide Development Company, Inc. against the North Vietnamese Communist forces during the Vietnam War. Mr. Nie Sieng
believes his revelation will be used as evidence to confirm the Vietnamese government’s suspicions against him, which will lead to his ultimate demise.
Second, Mr. Nie Sieng can demonstrate a well-founded fear of future persecution based upon the treatment of his stepdaughter upon her return to Vietnam in 2009. The Vietnamese government summoned, detained, and interrogated Mr. Nie Sieng’s stepdaughter to inquire about the opposition movement, plots against the government in the United States, and Mr. Nie Sieng’s experiences during the Vietnam War.
Finally, Vietnam’s country conditions, which clearly demonstrate the current volatile political and social situation in Vietnam, support Mr. Nie Sieng’s well-founded fear of future persecution. In particular, the current country conditions relate directly to arbitrary arrests, detentions, and interrogations of citizens who have an imputed political opinion, and the
discrimination against the Montagnards.xiv
Accordingly, Mr. Nie Sieng demonstrates a well-founded fear of future persecution. In consideration of the above, please conclude that Mr. Nie Sieng’s life would be threatened if he were forced to return to Vietnam.
III. The Vietnamese Government’s Persecution of Mr. Nie Sieng on Account of His Race and Nationality:
The Montagnards’ historic struggle against the Vietnamese government is recognized and well-documented. However, the Vietnamese government continues to systematically abolish the
Montagnards’ traditional way of life.xv For example, the government’s actions reveal a policy of
supporting brutal repression and killings based solely upon the race and nationality of the
Vietnam’s indigenous people.xvi
Today, the Vietnamese government is extremely suspicious of the Montagnards because of their religious preferences and link to FULRO. According to Human Rights Watch, “[s]ince
mid-2012 the Vietnamese government has intensified suppression of Montagnard Christians . . . [and] have forced hundreds of Montagnard Christians in public criticism sessions to publicly renounce their faith, violating internationally protected rights of freedom of religion and
conscience.”xvii Those who resists often face beatings, arrest, and imprisonment.xviii
The Vietnamese government also treats many Montagnards with suspicion, despite no
evidence that FULRO continues to operate in the Central Highlands.xix According to Vietnam’s
Embassy in the United States, the government considers FULRO a “separatist group, advocating
and using violent means.”xx In addition, the Embassy states that the “Montagnard Foundation is a
political organization (not human rights organization) with a separatist agenda resorting to violence and abuse of religious freedom to interfere from outside with a view to destabilizing and
sowing division among the ethnic communities in the Central Highlands.”xxi Based upon these
distorted and exaggerated views, the Vietnamese government has sentenced more than 350 Montagnards since 2001 to long-term prison sentences on vaguely defined national security
charges.xxii Of those more than 350 arrested and sentenced, “at least 25 Montagnards have died in
prisons, jails, or police lock-ups after beatings or illnesses sustained while in custody, or shortly
after being prematurely released by prison authorities to a hospital or home.”xxiii
Accordingly, the Vietnamese government will undoubtedly continue to harass and persecute the Montagnards, like Mr. Nie Sieng based solely upon their race and nationality. Please see the attached “Country Conditions Summary” for additional corroboration of the Vietnamese government’s ill treatment towards the Montagards.
IV. Mr. Nie Sieng is Unable to Internally Relocate in Vietnam:
Pursuant to 8 C.F.R. § 208.13(b)(3)(ii), it is statutorily presumed that Mr. Nie Sieng is unable to internally relocate within Vietnam because his persecutor is, essentially, the government.
In addition, pursuant to 8 C.F.R. § 208.13(b)(2)(C)(ii) and § 208.13(b)(3), Mr. Nie Sieng is unable to internally relocate because upon his arrival at any port of entry, Mr. Nie Sieng would face a heightened level of scrutiny based on his ethnicity. Mr. Nie Sieng’s basic human rights will continue to be violated throughout Vietnam because he is easily recognizable as a
Montagnard and member of an indigenous ethnic minority group.xxiv
Mr. Nie Sieng is easily recognizable of account of his name, skin color, and accent. First, Mr. Nie Sieng’s name reveals that he is a Montagnard, from the Rhade tribe. The use of the letter “Y” preceding Mr. Nie Sieng’s first name, which denotes masculinity, is unique to his tribe. Second, Mr. Nie Sieng’s skin color is darker than the Vietnamese. This characteristic is commonly attributed to the indigenous ethnic minorities from the Central Highland region of Vietnam. Finally, Mr. Nie Sieng’s accent and tone is distinct from the Vietnamese.
Accordingly, Mr. Nie Sieng’s name, skin color, and accent will immediately lead to a heightened level of scrutiny from the Vietnamese government because of the historic and well-documented strained relations and current tensions between the government and the Montagnards. Furthermore, this heightened level of scrutiny, based upon Mr. Nie Sieng’s visible ethnic characteristics, would in turn lead to the discovery of the government’s repeated investigation into his past, and his recent revelations that he fought against the North Vietnamese Communist forces during the Vietnam War.
In consideration of the above, please conclude that Mr. Nie Sieng is unable to internally relocate in Vietnam because his life would be in danger.
V. Corroboration of Applicant’s Claim of Persecution:
Mr. Nie Sieng’s testimony that he has suffered past persecution by the Vietnamese government on account of imputed political opinions is corroborated by objective documentary
stated that the Vietnamese government specifically targeted him because of imputed opinions that he worked for the CIA and was a member of FULRO during and after the Vietnam War. He also stated that he was arbitrarily detained and interrogated in a re-education camp and provincial police station on account of his imputed political opinions. Additional evidence corroborates Mr. Nie Sieng’s testimony, including (1) country conditions reports by the United States Department of State and non-governmental entities, which indicate that arbitrary arrests and detentions, particularly for political purposes, and societal discrimination against ethnic minorities remain a problem; and (2) sworn statements by witnesses with personal knowledge of the facts of Mr. Nie Sieng’s claims. Although Mr. Nie Sieng’s credible testimony is the best evidence of his claim, these other documentary sources provide persuasive corroboration in support of that testimony.
A. The United States Department of State and International Human Rights
Monitoring Entities:
The United States Department of State and international human rights monitoring entities have documented the persecution of those who are believed to criticize or oppose the Vietnamese government, or is a Montagnard. These entities identify the Vietnamese government and police of perpetrating these abuses. The United States Department of State reported “[s]pecific human rights abuses included continued police mistreatment of suspects during arrest and detention . . .”
and “societal discrimination against ethnic minorities has been longstanding and persistent.”xxvi
In addition, “[t]he government maintained increased security measures in the Central and
Northwest Highlands because of its concerns with alleged ethnic minority separatist activity.”xxvii
Furthermore, Human Rights Watch reported, “Vietnamese law continues to authorize arbitrary ‘administrative detention’ without trial,” which ultimately denies its citizens of the right
to a fair and expeditious trial.xxviii Despite these abuses, “the government does not permit private,
or individuals to comment publicly on its human rights practices.”xxix Both sources corroborate Mr. Nie Sieng’s testimony concerning his mistreatment at the hands of the Vietnamese government.
Please see the attached “Country Conditions Summary” for additional corroboration of Mr. Nie Sieng’s testimony.
B. Additional Witness Testimony:
Please also consider additional witness testimony supplied by the affidavit of Mr. Nie Sieng’s wife, Mrs. Vo Thi Phuong, and Mr. Nie Sieng’s stepdaughter, Mrs. Phuong H’Nie. Both affidavits provide corroborative testimony of the events and circumstances that underlie Mr. Nie Sieng’s claims. Mrs. Vo and Mrs. H’Nie know Mr. Nie Sieng and have personal knowledge of some of the specific facts and events that pertain to Mr. Nie Sieng’s case.
For example, in her affidavit, Mrs. Vo confirmed that: (1) Mr. Nie Sieng relocated his family to Buon Sing because he feared reprisal from the North Vietnamese Communist forces; (2) Mr. Nie Sieng was arrested and detained in a re-education camp for seven months because of the Vietnamese government’s belief that he worked for the CIA and FULRO; (3) she buried Mr. Nie Sieng’s military documents under her house prior to the provincial police search for evidence to support the government’s suspicions against Mr. Nie Sieng; (4) provincial police monitored Mr. Nie Sieng following his release from the re-education camp and eventually summoned and interrogated him on multiple occasions; (5) the Provincial Chief of Police contacted Mr. Nie Sieng upon his arrival in the United States on a B-2 visitor visa to inquire about his return to Vietnam; and (6) Mr. Nie Sieng revealed his past military experiences to the Provincial Chief of Police in hopes that his revelations would forever end the fear, harassment, and uncertainty that he has endured since 1975.
Furthermore, in her attached affidavit, Mrs. H’Nie confirmed that: (1) she was summoned and interrogated by the Provincial Chief of Police upon her return to Vietnam in 2009; (2) the government demanded to know about her knowledge of Mr. Nie Sieng’s experiences during the Vietnam War, FULRO activities, and plots against the Vietnamese government in the United States; and (3) she refused to return the summons to the provincial police.
Please consider that all of the above-referenced supporting documentation corroborates Mr. Nie Sieng’s testimony. Once again, however, I urge you to consider Mr. Nie Sieng’s sworn declaration as the strongest evidence in support of his claim. Even in the absence of supporting documentary evidence, Mr. Nie Sieng’s testimony should be sufficient to sustain his burden of proof because his testimony is “credible, . . . persuasive, and refers to specific facts sufficient to demonstrate that [he] is a refugee,” in accordance with the evidentiary requirements of INA § 208(b)(2)(B)(ii).
VI. Conclusion:
Accordingly, Mr. Nie Sieng should be granted asylum because he meets the definition of a refugee pursuant to INA § 101(a)(42)(A), and because he is not otherwise ineligible for asylum.
Please note that Mr. Nie Sieng’s case has been prepared with substantial assistance from a student representative at Elon University School of Law’s Humanitarian Immigration Law Clinic. This clinic provides pro-bono representation for indigent affirmative asylum applicants who would otherwise be unrepresented in these proceedings. This clinic uses great discretion in representing individuals with asylum cases because, as a not-for-profit organization, our capacity limitations prevent us from taking more than a few of these cases per academic semester. The decision to represent Mr. Nie Sieng, given our limited capacity, is the result of significant case selection scrutiny. Having undergone our strict vetting process and more than seventy hours of
in-office interviews with the applicant, we find Mr. Nie Sieng’s case to be meritorious, and his need for representation compelling.
Mr. Nie Sieng sacrificed his life fighting alongside the United States and its allies against the North Vietnamese Communist forces and communism during the Vietnam War. Mr. Nie Sieng’s pursuit of the basic notions of human rights and his loyalty to the American forces throughout the Vietnam War is detailed in the attached “Certificate of Achievement.” Mr. Nie Sieng has escaped to the United States in hopes of staying alive. He is a fascinating individual with an indomitable spirit, and would be an invaluable asset to the United States.
Thank you again for your consideration of Mr. Nie Sieng’s application for asylum.
i Matter of Acosta, 19 I&N. Dec. 211 (BIA 1985).
ii Qiao Hua Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005).
iii Zhiqiang Hu v. Holder, 625 F.3d 1011, 1017 (9th Cir. 2011) (“Regardless of whether Hu
actually held an anti-government opinion, the record compels the conclusion that the police imputed an anti-government political opinion to Hu.”); Desir v. Ilchert, 840 F.2d 723, 728 (9th Cir. 1988) (“We must view Desir as possessing a political opinion because his persecutors . . . both attributed subversive views to Desir and treated him as a subversive.”); Hernandez-Ortiz v. INS, 777F.2d 509, 517 (9th Cir. 1985) (finding the applicant’s actual political view, whether neutral or partisan, irrelevant where government attributed certain political opinions to her).
ivSee Grover Joseph Rees III. INS Office of General Counsel. “Legal Opinion: Continued
Viability of the Doctrine of Imputed Political Opinion,” Memorandum to Jan Ting, Acting Director, Office of Internal Affairs (Washington, DC: 19 January 1993).
v Singh v. Ilchert, 69 F.3d 375, 379 (9th Cir. 1995) (holding that a devout Sikh who was not a
supporter of Sikh separatists had separatist political opinion imputed to him by Indian police on basis of food and other support his family had been forced to provide the separatists).
vi INA § 208(b)(1)(B)(i), REAL ID Act, 8 U.S.C. § 1158(b)(1)(B)(i) (2008).
vii Matter of Acosta, 19 I&N. Dec. 211 (BIA 1985).
viii See, International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966,
Arts. 7 & 9, 999 U.N.T.S. 171, reprintedin 6 I.L.M. 368 (1967).
ix Gomez-Zuluaga v. Attorney General of U.S., 527 F.3d 330, 342-343 (3rd Cir. 2008) (noting
that although detention alone does not rise to level of persecution, unlawful abduction, eight-day confinement coupled with threats, ominous warnings, and indications that petitioner would be required to return and serve the FARC did constituted persecution).
x Matter of T-Z-, 24 I&N Dec. 163, 169-71 (BIA 2007) (adopting standard applied in Matter of
Laipenieks, 18 I&N Dec. 433 (BIA 1983), rec’d on other grounds, 750 F.2d 1427 (9th Cir. 1985)
to address whether economic harm rises to level of persecution.)
xi See Garrovillas v. INS, 156 F.3d 1010 (9th Cir. 1998); See Asylum Officer Basic Training
Course, Asylum Eligibility Part I: Definition of Refugee; Definition of Persecution; Eligibility
http://www.uscis.gov/USCIS/Humanitarian/Refugees%20&%20Asylum/Asylum/AOBTC%20Le ssons%20Plans/Definition-Refugee-Persecution-Eligibility-31aug10.pdf (“Threats alone, and particularly threats of death, can amount to persecution under certain circumstances. . . .”).
xii Id.
xiii Id.
xiv
See
“World Report 2013: Vietnam.” Human Rights Watch, published 2013; “Vietnam 2012 Human Rights Report.” U.S. Department of State, released by the Bureau of Democracy, Human Rights and Labor, published 2012.xv “Conclusions.” Montagnard Human Rights Organization, published 2010.
xvi Id.
xvii “Montagnard Christians in Vietnam: A Case Study in Religious Repression.” Human Rights
Watch, published March 30, 2011.
xviii Id.
xix Id.
xx “Some Facts About the Montagnard Foundation and Its Founder.” Embassy of the Socialist
Republic of Vietnam in the United States of America.
xxi Id.
xxii “Montagnard Christians in Vietnam: A Case Study in Religious Repression.” Human Rights
Watch, published March 30, 2011.
xxiii Id.
xxiv “World Report 2013: Vietnam.” Human Rights Watch, published 2013; “Vietnam 2012
Human Rights Report.” U.S. Department of State, released by the Bureau of Democracy, Human Rights and Labor, published 2012.
xxv INA § 208(b)(1)(B)(ii), REAL ID Act, 8 U.S.C. § 1158(b)(1)(B)(i) (2008).
xxvi “2012 Human Rights Repot: Vietnam.” U.S. Department of State, released by the Bureau of
Democracy, Human Rights, and Labor, published 2012. (Executive Summary; Section 6).
xxvii Id. (Section 6).
xxviii “World Report 2013: Vietnam.” Human Rights Watch, published 2013.
xxix “2012 Human Rights Report: Vietnam.” U.S. Department of State, released by the Bureau of
