Back to the Future

The past is catching up with the Vietnamese son of a black American soldier

The government's once-benevolent attitude toward immigrating Amerasians had chilled by the early 1990s, as tales of fraud (getting here) and other criminal activity (once they got here) emerged.

During that stretch, Congress held hearings that focused on the failure of INS to cope with increasing rates of crime committed by aliens. In 1996, President Bill Clinton signed the get-tough-on-immigrants law that directly affected Dung Chau and thousands of others. Among the changes, that law empowered INS to seek deportations even for misdemeanor convictions.

Deportations increased exponentially within a few years. And aliens from nations lacking normal extradition agreements with the U.S. would be detained indefinitely in quasi-prisons such as the one in Florence. (There are now about 4,500 of those "non-returnables," as they became known, in INS facilities around the nation, according to a spokesperson for Amnesty International.)

Dung Van Chau, November 2003
Jackie Mercandetti
Dung Van Chau, November 2003
Dung Chau came to the U.S. from Vietnam in 1984.
Dung Chau came to the U.S. from Vietnam in 1984.

In September 1996, the U.S. government informed Dung Chau that it planned to deport him for having been convicted of two crimes "of moral turpitude" -- the assault and the car theft, and of one "aggravated felony" (the same car theft). He got the news at the state prison in Perryville, where he'd been incarcerated for three months.

After several false starts, Chau's deportation hearing finally took place on March 3, 1998, in a little courtroom at the Perryville prison.

"Basically," Judge John Richardson told Chau, "the government has asked of me to order you deported from the United States. Understand that? Do you know what deportation is? Are you following me?"

"Yeah, sir," Chau replied. "I try."

His attorney, Nancy-Jo Merritt, was fortunate in having Richardson as a judge. Local immigration attorneys call him a thinking man's jurist, no small compliment in a job often mind-numbing in its repetition and bureaucratic overload.

Merritt, who specializes in immigration law, had gotten into the case at the urging of private investigator Durand -- who had stayed in close contact with Chau through the years.

Now a partner at the Phoenix law firm of Fennemore Craig, Merritt says she agreed to take on the case for free because she liked Chau, and believed she had a compelling legal argument to make for him.

Richardson heard testimony during the hearing from Durand, Mai Chau, and Dung Chau.

Like her son, Mai Chau remembered the black American who'd interviewed her in Ho Chi Minh City in 1983.

"He asked me about my life," she said through a translator, "and I told him that being the mother of an Amerasian, my life is very difficult in Vietnam."

Dung Chau told the judge that he'd been called nasty names in Vietnam for as long as he could remember, adding through an interpreter, "The black American could not attend school, he could not do anything."

"Did your mother ever talk about your father?" Merritt asked him.

"Yes," Chau answered. "She told me about him, but that was when I was too young, and then I do not recall."

INS attorney David Peters argued that Chau's admittedly tragic upbringing in Vietnam wasn't the issue at hand.

". . . There is no evidence that Congress intended to legitimate the children covered within the Amerasian Children Act, or any of the subsequent related acts," Peters said. "If they did, they wouldn't be coming to the U.S. as permanent residents, they would be coming to the U.S. as citizens . . ."

Responded Nancy-Jo Merritt, "The determination has been made that his father is a U.S. citizen. That's been made by the U.S. government. Otherwise, he wouldn't be out of Vietnam, he'd still be there. Second, the law of unintended consequences has brought us to where we are today. By saying that he's a child under the Amerasian Children Act, that makes him legitimated. I can't help it if Congress didn't notice that."

Richardson rendered his opinion at the end of the hearing: "The evidence is clear and irrefutable that [Chau], in fact, entered the U.S. as an Amerasian child. . . . There is no question as to his entry under the Amerasian Children Act as the son of a citizen of the U.S. -- a service member."

Dung Chau's stunning victory was short-lived. In March 1999, the INS won its appeal of Richardson's ruling at the Board of Immigration Appeals, in Falls Church, Virginia.

"The threshold factual weakness in [Chau's] case is the fact that no one knows who [his] father was, much less that his father was a U.S. citizen," that board concluded.

That led Nancy-Jo Merritt to ask the Ninth Circuit Court of Appeals to consider Chau's case. The appellate court published its opinion in May 2001.

It agreed with the INS that "there is nothing . . . that suggests that Congress intended to grant citizenship status to those individuals admitted into the U.S. [that Act]."

However, Judge Richard Paez pointed out that even the feds now conceded Chau had shown enough evidence "to raise genuine issues" about his claim to citizenship via his unknown father.

The court ordered Judge McNamee to investigate three issues before it makes its final decision on the case:

• The identity of Chau's father;

• If Chau's father had resided long enough in the U.S. to allow Chau to qualify for citizenship;

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