Flaws in the Interpretation of INA Section 101(a)(42) and In the Denial of Refugee Status to Cambodians In Thailand

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Georgetown Immigration Law Journal


In 1979, when Thailand was unable to support the tens of thousands of Cambodian, Laotian, and Vietnamese refugees who had streamed across her borders, the United States promised Thailand that it would help arrange international relief for the refugees and would itself accept many of the Cambodians for resettlement.' In accordance with the newly enacted Refugee Act of 1980, the President, in consultation with Congress, declared Cambodians living in temporary Thai camps to be "of special humanitarian concern to the United States" and formally established an overseas processing system to determine which individuals within this group met the new definition of refugee set forth in the 1980 Refugee Act. In overseas processing, if an applicant qualifies as a refugee under the Act, he or she is entitled to enter the United States and resettlement is subsequently granted pro forma. The Khao I Dang Holding Center in Thailand presently holds 13,986 Cambodians. These Cambodians arrived in the camp by February 1983 and the United States Immigration and Naturalization Service (INS) subsequently denied them refugee status and resettlement. Their rejection stems from an INS assessment that they have failed to satisfy the definition of refugee as stated in section 101(a)(42) of the Immigration and Nationality Act (INA). The overlapping reasons given by the INS for the denial of refugee status in these cases are: (1) the applicants' involvement in Khmer Rouge acts of persecution, which bars applicants under the second sentence of section 101(a)(42), and (2) the applicants' lack of credibility, based on real or apparent inconsistencies in their personal histories as related to interviewers." This article examines these two rationales for denial of refugee status to the rejected Cambodian applicants.

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Summer 1987