by Marc
Ellis
On May 30, 2002, President Bush signed a renewal and extension of
the McCain Amendment, Public Law 107-185. The law provides derivative refugee
status to the adult sons and daughters of Vietnamese re-education camp
detainees who meet the following criteria:
They are the adult (over 21 years of age) son or daughter of a
national of Vietnam who:
was formerly interned in a re-education center or is a widow of a
formerly interned re-education camp detainee in Vietnam; OR
was accepted for resettlement in the U.S. as a refugee or an
immediate relative immigrant under the Orderly Departure Program (ODP)
sub-program for re-education camp detainees, or via the U.S. Consulate General
in Ho Chi Minh City; AND
is presently maintaining a residence in the United States, or
whose surviving spouse is presently maintaining such a residence, or
is awaiting departure formalities from Vietnam or whose surviving
spouse is awaiting departure formalities; AND
They were unmarried as of the date of their parent's approval for
refugee resettlement in the U.S. or immediate relative immigrant visa issuance.
The new amendment will expire on September 30, 2003. As of June 15, 2002, the
US Consulate in Ho Chi Minh City (HCM/Saigon), is still awaiting guidance from
Washington, before they can begin processing cases. I have enclosed the HCM
Consulate Fact Sheet on the McCain Amendment at the end of this article.
Background
on the McCain Amendment:
On April 29th and 30th, 1975, an immense tragedy was beginning in
Vietnam. After taking Saigon, the victorious North Vietnamese Army began a
systematic campaign of vengeance against former members of the South Vietnamese
armed forces. In the months that followed, tens of thousands of identified
former South Vietnamese soldiers and airmen were executed or sent to
re-education camps.
An exodus of refugees in small fishing boats took sail into the
South China Sea, rather than lose husbands, fathers, brothers and sons to the
communist re-education camps. It is estimated that more than two hundred
thousand Vietnamese "Boat People" eventually found their way to the
United States through a gauntlet of refugee camps in Thailand, Malaysia, and
the Philippines.
Of those who stayed behind, some were able to come to the US as
refugees and derivative refugees through the State Department's "Orderly
Departure Program", "ODP".
Prior to April, 1995, the unmarried adult sons and daughters of
re-education camp detainees had been allowed to process as derivative refugees
under ODP, if they were accompanying a refugee parent, or were following to
join that parent. But the State Department changed its policy in April, 1995.
Perhaps the change was part of an effort to move toward normalization of
relations with Vietnam and close the refugee admissions program. Whatever the
reason, after April 1995, the unmarried sons and daughters of re-education camp
detainees were denied admission to the US as derivative refugees.
In 1997, Senator John McCain (R-Az), sponsored a bill which later
became law, that restored derivative refugee status for those affected by this
change in policy. However, in implementing the new law, the State Department
continued to deny admission to two groups of persons who should have otherwise
qualified, the unmarried adult sons and daughters of widows or widowers of
re-education camp prisoners, and the unmarried adult sons and daughters of
re-education camp detainees who had been processed and settled into the U.S. as
immigrants, rather than as refugees.
Senator McCain remarked on the floor of the Senate in June, 1997,
that the Department of State had interpreted his amendment "...so as to
exclude the very people to whom the provision was targeted...".
In 1998, Congress added language which explicitly included the
groups who were being denied admission by the State Department. Former
President Clinton signed the law on May 1st, 1998. That law expired September
30th, 1999. Now, President Bush has renewed the program until September 30th,
2003.
Formal notice was required to be given to eligible applicants by
the US Consulate in Vietnam. Unfortunately, the Vietnamese government would not
allow notice to be given, except through their official channels. All
communications between the US Consulate and potentially eligible applicants had
to take place using Vietnamese government intermediaries. So many eligible
people never learned of the program. Since 1999 however, the Vietnamese
Government has agreed to allow publication of notice by DOS in the Vietnamese
press.
It is important to note, that the McCain Amendment appears to be
unaffected by the August 1998 INS Guidelines on Derivative Refugee status.
Eligible beneficiaries are considered refugees of special humanitarian concern,
as defined by Section 207 of the I.N.A.
A simplified Fact Sheet provided by the Refugee Section of the HCM
Consulate in Vietnam is reprinted below, along with an application form and the
actual text of the law itself.
McCain
Amendment Processing Fact Sheet
On May 30, 2002, the revised and expanded McCain amendment was
signed by President Bush and became Public Law 107-185.
Eligibility
Below is a simplified explanation of the McCain Amendment. All
applications are reviewed on a case-by-case basis to determine the
applicability of the law. For more detailed information on the law, see the
links at the end of this page.
The McCain Amendment provides that certain sons or daughters of
former Vietnamese re-education center detainees are to be considered refugees
of special humanitarian concern and may be eligible for resettlement in the
U.S. if they meet the following criteria:
They are the adult (over 21 years of age) son or daughter of a
national of Vietnam who:
was formerly interned in a re-education center or is a widow of a
formerly interned re-education camp detainee in Vietnam;
was accepted for resettlement in the U.S. as a refugee or an
immediate relative immigrant under the Orderly Departure Program (ODP)
sub-program for re-education camp detainees, or via the U.S. Consulate General
in Ho Chi Minh City; and
is presently maintaining a residence in the United States, or
whose surviving spouse is presently maintaining such a residence, or
is awaiting departure formalities from Vietnam or whose surviving
spouse is awaiting departure formalities; AND
They were unmarried as of the date of their parent's approval for
refugee resettlement in the U.S. or immediate relative immigrant visa issuance.
Application procedures
In order to submit an application, please print out and complete
the McCain Amendment Program Application Form and mail it to us directly at:
Deadline
for Processing
The McCain Amendment will expire on September 30, 2003. Processing
of all applicants must be completed by that date. To insure sufficient time for
processing, we suggest that all requests for consideration under the McCain
program be submitted before April 30, 2003. We cannot guarantee that we will be
able to process to completion those applicants that contact us after April 30,
2003.
Text
of the Law
SECTION 1. ELIGIBILITY FOR REFUGEE STATUS.
ELIGIBILITY FOR IN-COUNTRY REFUGEE PROCESSING IN VIETNAM. -- For
purposes of eligibility for in-country refugee processing for nationals of
Vietnam during fiscal years 2002 and 2003, an alien described in subsection (b)
shall be considered to be a refugee of special humanitarian concern to the
United States (within the meaning of section 207 of the Immigration and
Nationality Act (8 U.S.C.1157)) and shall be admitted to the United States for
resettlement if the alien would be admissible as an immigrant under the
Immigration and Nationality Act (except as provided in section 207(c)(3) of
that Act).
ALIENS COVERED. -- An alien described in this subsection is an
alien who--
is the son or daughter of a qualified national;
is 21 years of age or older; and
was unmarried as of the date of acceptance of the alien's parent
for resettlement under the Orderly Departure Program or through the United
States Consulate General in Ho Chi Minh City.
QUALIFIED NATIONAL. -- The term 'qualified national' in subsection
(b)(1) means a national of Vietnam who--
(A) was formerly interned in a re-education camp in Vietnam by the
Government of the Socialist Republic of Vietnam; or
(B) is the widow or widower of an individual described in
subparagraph (A);
(A) qualified for refugee processing under the Orderly Departure
Program re-education subprogram; and
(B) is or was accepted under the Orderly Departure Program or
through the United States Consulate General in Ho Chi Minh City--
for resettlement as a refugee; or
for admission to the United States as an immediate relative
immigrant; and
(A) is presently maintaining a residence in the United States or
whose surviving spouse is presently maintaining such a residence; or
(B) was approved for refugee resettlement or immigrant visa
processing and is awaiting departure formalities from Vietnam or whose
surviving spouse is awaiting such departure formalities.
Purpose
of the Law
As described in the House of Representatives report on the bill,
The Act extends the time period that the State Department and the
Immigration and Naturalization Service (INS) have to process eligible adult,
unmarried sons and daughters through fiscal year 2003. It removes the date of
April 1, 1995, imposed by the McCain Amendment, so that the cases of sons and
daughters processed after April 1, 1995, are adjudicated in the same manner as
those cases processed prior to that date. The Act permits the INS to reconsider
cases that were previously denied for failure of proof of family relationship,
rather than just those cases that were denied based on the issue of
co-habitation with the principal alien. Finally, the Act expands eligibility to
adult, unmarried sons and daughters whose principal parent has died, but whose
surviving parent is maintaining a residence in the United States or is awaiting
departure formalities from Vietnam.
About The
Author
Marc Ellis practices immigration law in New Orleans, LA. He earned
his Juris Doctor Degree at the University of Alabama. He is an AILA member and
a member in good standing of the Louisiana State Bar Association. He can be
reached at ellis@nternet.com.
The opinions expressed in this article do not necessarily reflect
the opinion of ILW.COM.
SOURCE:
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