oversight

Refugee Program: The Orderly Departure Program From Vietnam

Published by the Government Accountability Office on 1990-04-11.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

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GAO
                   United States
                   General Accounting  Office
                   Washington, D.C. 20548

                   National Security and
                   International Affairs Division

                   B-238006

                   April 11, 1990

                   The Honorable Bruce A. Morrison
                   Chairman, Subcommittee on Immigration,
                     Refugees, and International Law
                   Committee on the Judiciary
                   House of Representatives

                   Dear Mr. Chairman:

                   This report responds to your request that we evaluate the Immigration
                   and Naturalization Service’s (INS) practices and procedures for adjudi-
                   cating the cases of Vietnamese refugee applicants. You asked us to (1)
                   determine why approval rates for Vietnamese refugee applicants were
                   apparently low, (2) evaluate the quality and consistency of the INSadju-
                   dication process, and (3) determine if denied refugee applicants’ files
                   adequately reflected the bases for the examiners’ decisions. We also
                   determined whether Vietnamese of special interest to the United States
                   were being interviewed by INSexaminers.


                   We found that approval rates for Vietnamese refugee applicants
Results in Brief   dropped from 100 percent during October 1988 through January 1989
                   to an average of about 36 percent during the next 6 months beginning in
                   February 1989. This drop in approval rates occurred because of an
                   August 1988 decision by the Attorney General that the INSshould begin
                   applying its worldwide guidance for overseas refugee processing in
                   granting refugee status to Vietnamese applicants. The Attorney Gen-
                   eral’s decision meant that Vietnamese applicants would no longer be
                   given an automatic presumption of refugee status simply because they
                   were living in Vietnam, but would have to assert fear of persecution and
                   a credible basis for such a fear.

                   Although the Attorney General’s decision resulted in a drop in the
                   number of applicants granted refugee status, it did not result in fewer
                   Vietnamese being offered entry into the United States. Most of those
                   denied refugee status were offered entry into the United States as Public
                   Interest Parolees.

                   We found that the INSrefugee adjudication process in Vietnam was gen-
                   erally thorough and consistent, and performed by experienced and well-
                   trained examiners. Our review indicated that reasons for denial of refu-
                   gee status were documented in the files for 87 percent of the cases we


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                        reviewed and INS officials informed us that they have taken action to
                        assure that subsequent denial decisions are adequately documented.

                        At the time of our visit to Vietnam in July 1989, many Vietnamese of
                        special concern to the United States, such as individuals with a previ-
                        ously close association with the United States who had been detained in
                        Vietnamese re-education camps, were not being allowed by the
                        Vietnamese government to be interviewed by INSexaminers. However,
                        an agreement was reached on July 30,1989, between the U.S. and
                        Vietnamese governments that, beginning in October 1989, INSexaminers
                        could interview such individuals. Department of State and INS officials
                        reported that about 4,830 such individuals were interviewed from Octo-
                        ber 1989 through January 1990.


                        The Orderly Departure Program (ODP) was established under a 1979
The Orderly Departure   Memorandum of Understanding between the United Nations High Com-
Program                 missioner for Refugees and the government of Vietnam to provide a safe
                        and legal means for people to leave Vietnam rather than clandestinely
                        by boat. The agreement provides for the departure of immigrants and
                        refugees for family reunion and humanitarian reasons. In addition to
                        serving as an orderly, predictable means for those wishing to depart the
                        country, it also serves to relieve the flow of refugees into first asylum
                        countries and to save the Vietnamese government the embarrassment of
                        the uncontrolled illegal exodus of thousands of its citizens.

                        The Memorandum of Understanding established a selection process for
                        those authorized to depart Vietnam based on exchanges of lists between
                        the Vietnamese government and the receiving countries, such as the
                        United States. Under the process, receiving countries submit to the
                        Vietnamese government a list of those for whom entry visas would be
                        granted. Vietnam, in turn, provides the country with a list of those eligi-
                        ble for exit visas. The United States processes for entry only those
                        whose names appear on both lists. Individuals whose names appear on
                        only one of the two lists could be subject to discussions between the
                        Vietnamese and U.S. governments.

                        Vietnamese can travel to the United States under the ODP as immigrants,
                        following normal U.S. visa issuance procedures, or as refugees. The
                        Departments of State and Justice developed three basic categories of
                        Vietnamese refugees eligible for entry under the ODP.




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                  Category I:         Family members of persons in the United States not cur-
                                      rently eligible for immigrant visas.

                  Category II:        Former employees of the U.S. government.

                  Category III:       Other persons closely associated or identified with the
                                      United States’ presence in Vietnam before 1975,’includ-
                                      ing children of American citizens in Vietnam (Amera-
                                      sians) and their immediate family members.


ODP Application   The ODP Office at the U.S. Embassy in Bangkok, Thailand, administers
                  the program, augmented by staff of the International Catholic Migration
Procedures        Commission. Vietnamese who rely on normal immigration channels must
                  have a relative in the United States obtain and file immigrant visa peti-
                  tions (INS Form I-130) with their local INSoffice. Approved petitions,
                  along with affidavits of relationships and other documents from spon-
                  soring relatives, are then sent to the ODP Office in Bangkok to serve as
                  immigrant visa case files. Refugee applicants still in Vietnam or their
                  relatives in the United States may directly petition the ODP Office in
                  Bangkok for refugee status. (Refugees already in the United States may
                  petition to have their spouses and children join them by filing a Visa 93
                  petition with their local INSoffice.)

                  After receiving the petitions, the ODP Office in Bangkok issues Letters of
                  Introduction to immigrant applicants in Vietnam. This occurs when their
                  visa eligibility dates become effective or are nearing the effective dates.
                  Refugee applicants whose case files indicate their eligibility for refugee
                  status, are also sent Letters of Introduction. A Letter of Introduction is a
                  document which states that the United States is willing to interview the
                  individual for possible acceptance and movement through ODP, but it is
                  not a guarantee of approval. Letter of Introduction holders normally
                  present the documents to the Vietnamese authorities as a preliminary
                  step in obtaining exit permissions and pre-departure interviews with INS
                  and State officials.

                  The ODP Office periodically receives from the Vietnamese government
                  names of people it will allow the INS and consular officials in Ho Chi
                  Minh City (previously Saigon) to interview. Upon receipt of these
                  names, ODP staff in Bangkok review the cases to determine which ones

                  ‘The United States withdrew its remaining military forces and civilian presence from Vietnam after
                  the fall of the South Vietnamese government in April 1975.



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                      are eligible for the ODP and what further documents or information are
                      necessary. Once the files are complete, the ODP Office requests the
                      Vietnamese government to make those applicants available for inter-
                      view during one of the upcoming interview sessions.

                      Teams of INS and State consular officers travel to Ho Chi Minh City each
                      month to interview ODP applicants made available to them by the
                      Vietnamese authorities. Those applicants with successful interviews
                      must also undergo a medical examination. II’the successful applicants
                      pass the medical examinations, the ODP Office in Bangkok transmits final
                      approval of the applicants’ petitions to the Vietnamese authorities
                      through the United Nations High Commissioner for Refugees. Approved
                      applicants are then booked on a flight to Bangkok by the Vietnamese
                      government. Amerasians and some refugee applicants are booked on
                      dir& flights from Vietnam to Manila to attend the English as Second
                      Language/Cultural Orientation program in the Philippines.

                      Vietnamese can enter the United States under ODP for family reunifica-
                      tion reasons as immigrants or for humanitarian reasons as refugees.
                      Those found ineligible for refugee status can also enter as Public Inter-
                      est Parolees, a humanitarian program implemented in February 1989
                      under the authority of the Attorney General and available to those able
                      to prepay their travel expenses and obtain affidavits of support from
                      sponsors in the United States.

                      Many of those traveling under the ODP are Amerasians and their immedi-
                      ate families. Public Law 100-202, Section 584, often referred to as the
                      Amerasian Homecoming Act, provides that Amerasians and their quali-
                      fying family members leaving Vietnam within a 2-year period after
                      March 21,1988, are entitled to enter the United States as immigrants,
                      but are eligible for all benefits oifered refugees, including resettlement
                      and training benefits. To be eligible for admission under the act, Amera-
                      sians must have been residing in Vietnam on December 22,1987, the
                      date the legislation was enacted, and must be able to establish that they
                      were born in Vietnam after January 1,1962, and before January 1,
                      1976, and had American citizen fathers.


                      Each year executive branch officials, after consulting with the Congress,
Fiscal Year 1989      establish refugee admissions allocations for the next fiscal year. The fis-
Vietnamese Arrivals   cal year 1989 ODP allocation was 22,000 admissions to the United States,
                      A total of 17,685 Vietnamese refugees were admitted during the fiscal



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                        B-238666




                        year, a shortfall of 4,315. The fiscal year 1990 ODP refugee admissions
                        level has been set at 26,500.

                        State officials informed us that the fiscal year 1989 admissions shortfall
                        resulted from fewer former re-education camp detainees and U.S. gov-
                        ernment employees being interviewed for refugee status than antici-
                        pated, and from the unforeseen award of Public Interest Parole to many
                        who, before February 1989, would have been awarded refugee status.
                        (Parolees do not count against refugee admission allocations.)

                        Until February 1989, INSofficers conferred refugee status on virtually
                        all applicants in Vietnam based on the presumption that they met the
                        definition of a refugee as specified in the Immigration-Nationality Act of
                        1980. However, in February 1989, INS began to apply worldwide stan-
                        dards for refugee determination. This change resulted from an August
                        1988 decision by the Attorney General that INSshould uniformly apply
                        the regulations of existing statutes regulating immigration processing.
                        The change meant that INSwould no longer work from a presumption
                        that Vietnamese applying for ODP meet the definition of refugee. The
                        decision also provided that those not granted refugee status could be
                        considered for entry to the United States under the Attorney General’s
                        parole authority.


                        The Attorney General’s decision to adjudicate refugee cases strictly in
Refugee Denial Rates    accordance with INS Worldwide Guidance for Overseas Refugees
Do Not Reflect a Drop   P recessing resulted in a sharp drop in the number of applicants granted
in ODP Activity         refugee status. However, most of those denied refugee status did not
                        originally apply to ODP as refugees. Most would have been immigrant
                        visa applicants but their visa petitions were not yet current, and were
                        considered for refugee status for family reunification reasons. Those
                        denied refugee status were offered Public Interest Parole.2 Thus, simply
                        because refugee denial rates were up does not mean that fewer
                        Vietnamese were leaving Vietnam under the ODP.

                        While no refugee applicants were denied refugee status during INS’first
                        three interview trips in fiscal year 1989, the denial rate averaged 63.6
                        percent during the next six trips. However, our analysis of agency data,
                        as reflected in Table 1.1, shows that during this latter period the


                        2Those offered parole are primarily the sons and daughters of immigrants and former w-education
                        camp detainees holding current visa petitions, according to State Department officials.



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                                         number of immigrant approvals increased and those not adjudicated as
                                         refugees were granted parole.

Table 1.1: Orderly Departure Program
Decisions                                                                                    Refugee Adjudications
                                         Interview             Approved        Refugee                    Parole
                                         trips, FY 1989       immigrants      approvals      Percentage    offers  Percentage               TotaP
                                         Oct. 1988                      601        1,180                100         -                -      1,781
                                         Nov.1988                       513        1.123                100         -                -      1.838
                                         Jan. 1989                      195          335                100         -                -        530
                                         Feb.1989                    1,100            198                26       551                74     1,849
                                         Mar.1989                       863           169                20       661                80     1.893
                                         Apr.1989                       871           193                35       363                65     1,427
                                         May1989                        625          225                 49        234               51     1,084
                                         Jun.1989                       826          352                 46       416                54     1,594
                                         Jul. 1989                    1,110          386                 42        526               58     2,022       .
                                                                     8,704         4,181                        2,751                      13,818
                                         aExcludes pending cases and those found to be ineligible for the ODP program for reasons such as
                                         health or failure to meet basic qualifications. Figures also exclude approved Amerasians and therr rela-
                                         tives. (They are accounted for as a separate program element.)


                                         We found that those denied refugee status beginning in February 1989
                                         were routinely offered Public Interest Parole giving them the opportu-
                                         nity to travel to the United States, provided they prepaid airline tickets
                                         and had affidavits of support from relatives or agency organizations in
                                         the United States. ODP officials in Bangkok informed us that most of
                                         those offered Public Interest Parole program were accepting the offers.
                                         Table 1.2, based on agency information available as of July 1989, gives
                                         an indication of the proportion of Vietnamese accepting the parole offer.

Table 1.2: Eligible Vietnamese Offered
and Accepting Parole as of July 1989                                            Travel expenses
                                         1989                     Number            paid, not yet        Travel expenses        Total approved
                                         Interviews              departed               departed              not yet paid            for parole
                                         February                       117                      376                      57                   550
                                         March                           59                      402                     180                   641
                                         April                            0                      285                      55                   340
                                         May                              0                      200                      33                   233
                                         Total                          178                   1.283                      325                1.784


                                         INSand State officials told us that the majority of the refugees emigrat-
                                         ing to the United States through ODP were category I immigrant visa
                                         petitioners, adjudicated as refugees for family reunification purposes.
                                         Relatively few were categories II or III individuals. According to State


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                                           officials, individuals in these latter categories are at risk of being perse-
                                           cuted by Vietnamese authorities, and were being generally barred from
                                           access to INSinterviewers by the Vietnamese government. State Depart-
                                           ment statistics show that during fiscal year 1989 a total of 9,018 refu-
                                           gees were admitted through the ODP. This included 132 former U.S.
                                           government employees, and 64 former re-education camp prisoners,
                                           along with 253 accompanying relatives.

                                           We observed 41 INSinterviews of ODP applicant families in Vietnam dur-
                                           ing July 14 to 20,1989. The cases involved a total of 248 persons. The
                                           petitioners were U.S. citizens in 34 cases, and permanent resident aliens
                                           in the other 7. Table 1.3 shows how the 248 persons were processed.

Table 1.3: Our July 1989 Observations of
ODP Applicants                             Disposition                                               Number            Percent
                                           Approved for immigrant visas                                       57            23
                                           Approved as refugees                                               71            29
                                           Offered Public Interest Parole                                    105            42
                                           Decision pending more information                                  11                 4
                                           Not qualified under INS status                                      4                 2
                                                                                                             248           100


                                           INS officers in Vietnam told us that before February 1989, individuals
                                           who were denied immigrant status, but were otherwise eligible, would
                                           have been interviewed as refugees for family reunification reasons and
                                           approved for entry into the United States. However, because of the
                                           Attorney General’s decision, only 71, or 29 percent, were granted refu-
                                           gee status after February 1989.


                                           Although ODP was intended to provide a means of emigration for both
U.S. and Vietnam                           family reunification and humanitarian reasons, most cases made availa-
Governrrtents                              ble by the Vietnamese government were those involving family reunifi-
Negotiated Access to                       cation. U.S. officials told us that only about 300 categories II and III
                                           refugees were gaining access to ODP per year, and that the Vietnamese
Refugees                                   government was controlling the number allowed to emigrate.

                                           In July 1989, representatives of the governments of the United States
                                           and Vietnam negotiated an agreement whereby more individuals would
                                           be released from re-education centers and their families would be
                                           allowed to emigrate. The agreement, announced on July 30,1989, pro-
                                           vided for the United States to begin interviewing former re-education



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                       center detainees in October 1989. The agreement set a goal of 3,000 for-
                       mer detainees and dependents to be interviewed before the end of 1989,
                       and 12,000 more were expected to be interviewed in 1990.

                       INSofficers confirmed that the October 1989 ODP interview team began
                       interviewing former detainees in Vietnam in accordance with the July
                       30 agreement. State Department’s Bureau of Refugee Programs figures
                       indicate that officials interviewed a total of 4,830 former detainees from
                       October 1989 through January 1990, thus meeting initial expectations.
                       Bureau of Refugee Programs and INSofficials told us that the program                                   ,
                       was proceeding smoothly.

                       The Bush administration has established a fiscal year 1990 admissions
                       ceiling of 26,500 for those departing Vietnam under ODP. This is an
                       increase of 4,500 over the fiscal year 1989 allocation of 22,000, due
                       partly to expected increased accessions of former re-education detainees
                       and their accompanying relatives.


                       The ODP interview team we accompanied to Vietnam in July 1989
ODP Applicant          included three officers from INS’District Office in Bangkok.3 We inter-
Processing Thorough    viewed the officers to determine their experience, training, and qualifi-
and Consistent, but    cations for adjudicating ODP refugee cases, and observed a total of 41
                       cases to determine if the officers asked similar questions and used simi-
Decisions Not Always   lar bases for adjudicating their assigned cases.
Documented
                       Each officer was trained and experienced in refugee processing proce-
                       dures, and knowledgeable about country conditions in Vietnam and
                       throughout Southeast Asia. The officers averaged 18 years of service
                       with INS,each had previous interview team assignments in Vietnam, and
                       had recently received refresher training in Bangkok, including State
                       Department briefings on country conditions in Vietnam and Southeast
                       Asia.

                       The officers uniformly applied INSand ODP guidelines in adjudicating
                       their cases. Each asked a variety of questions designed to elicit informa-
                       tion about family relationships, living conditions, work and educational
                       circumstances, government policies and practices, and the individuals’
                       statements on, or fears of, persecution. In addition, we observed various

                       3A fourth accompanying senior examiner, assigned to INS Headquarters and on an ODP familiariza-
                       tion visit, adjudicated some cases.The officer was an experienced examiner, with prior refugee adju-
                       dication experience in Europe and Thailand.



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              instances of the officers conferring with each other on complex or diffi-
              cult cases.

              INSHeadquarters and District Office instructions, as well as ODP Office
              guidance, require the examiners to document the rationale for their deci-
              sions to deny refugee status. Our sample of 364 case files of applicants
              denied refugee status between February and July 1989 revealed that,
              while most contained sufficient explanations of the examiners’ deci-
              sions, some did not. For the case files in our study, approximately 87
              percent contained adequate bases for the decisions.

              Our study showed that 73 percent of the denied applicants were cate-
              gory I immigrant visa petitioners adjudicated as refugees, another 26
              percent were Amerasians or their close relatives. Only one denied appli-
              cant was a pre-1975 U.S. government employee, which reinforced INS
              officers’ statements to us that virtually no categories II or III refugee
              applicants were denied refugees status.

              Senior INS officials informed us that in light of the number of denied case
              files without sufficient rationale for the decisions, the Bangkok District
              Office has begun sampling ODP interview teams’ case files upon their
              return from Vietnam. We were told that the limited sampling procedure
              was designed as a quality assurance mechanism to ensure that all denied
              case files contain adequate explanations of the decisions.


              The high refugee denial rates in the ODP are not an accurate indicator of
Conclusions   the treatment of refugees under the program. INSrefugee approvals, or
              denials with accompanying offers of parole, are primarily mechanisms
              for resettling Vietnamese families unable to travel under immigrant
              visas. Almost none of those applying for resettlement on the basis of
              refugee characteristics were being denied refugee status.

              Until recently, few former re-education camp detainees and others of
              special interest to the United States, who may be eligible for refugee
              status, were given access to INSinterviewers by Vietnamese authorities.
              The Vietnamese government agreed in July 1989 to allow former
              re-education detainee and their families to emigrate to the United States.
              INS officers began interviewing former detainees in October 1989, and
              the program appears to be proceeding smoothly.




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              EL238006




              INSofficials from the Bangkok District Office were experienced and well-
              trained, and were processing ODP cases in Vietnam thoroughly and con-
              sistently at the time of our visit. Refugee applicants’ case files contained
              the bases for the examiners’ decisions in 87 percent of the eases we
              reviewed, and the INSDistrict office has implemented a file review pro-
              cess, which should further ensure the documentation of denial decisions
              by its examiners.


              We analyzed available agency data on the ODP decisions made during
Scope and     nine trips to Vietnam, covering October 24, 1988 to July 21,1989, to
Methodology   determine whether approval rates for Vietnamese refugee applicants
              had dropped during 1989, and if so, why the decline had occurred and
              whether those denied refugee status were also being denied entry into
              the United States.

              To evaluate the quality and consistency of adjudication processes for
              Vietnamese immigrants and refugees, we reviewed pertinent legislation
              and regulations; interviewed officials and reviewed records at INSand
              Department of State in Washington, D.C., the U.S. Embassy in Bangkok,
              Thailand, and in Ho Chi Minh City, Vietnam. We analyzed 364 denied
              refugee case files to determine whether the reasons for denials of refu-
              gee status were well documented. In July 1989, we had firsthand obser-
              vations of the program in Vietnam. We determined the nature and
              extent of the background and experience of involved INSexaminers. We
              obtained information on access to Vietnamese of special interest to the
              U.S. government through discussions with State Department, INS,and
              embassy officials. Our review was performed between June 1989 and
              December 1989, and was conducted in accordance with generally
              accepted government auditing standards.

              We did not obtain written comments on this report from agency offi-
              cials. However, we obtained their oral comments and incorporated them
              as appropriate in the text.


              We are sending copies of this report to the Chairmen, House and Senate
              Committees on the Judiciary; the Attorney General; the Commissioner of
              INS;and the Director, Office of Management and Budget. We will also
              make copies available to others upon request.

              GAO staff members Harvey J. Finberg, Computer Systems Analyst, and
              Leroy W. Richardson and David R. Martin, Assistant Directors in the


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           National Security and International Affairs Division, Washington, D.C.,
           made major contributions to this report. If you or your staff have any
           questions, please call me at (202) 275-5790.

           Sincerely yours,




           Harold J. Johnson
           Director, Foreign Economic
             Assistance Issues




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