Excerpted From: Davis Lovvorn, Lessons from Vietnam: Informing Refugee Policy in Haiti and Afghanistan from Post-Vietnam United States Policy, 37 Notre Dame Journal of Law, Ethics & Public Policy 299 (2023) (152 Footnotes) (Full Document)


DavisLovvornOn August 30, 2021, the United States ended its longest-ever war, which lasted for more than twenty years, when C-17 Globemaster military cargo planes completed their final evacuation mission from Kabul International Airport in Afghanistan's capital. The C-17 Globemaster cargo planes had not only been a familiar sight during those brief days in Kabul, but they had also gained international infamy through a series of viral videos. In “a scene that has come to symbolize the chaotic end to America's 20 years of war in Afghanistan,” grainy video footage captures several people, who had been filmed clinging to the plane as it took off, falling from the plane at an altitude of thousands of feet in the air, being crushed to death as they landed. The images garnered international attention, with one report calling the scenes “[t]ragic” and “[d]istressing,” and another calling it “[s]triking.”

Meanwhile, tens of thousands of miles away, more distressing scenes were being played out at the United States' border with Mexico. As thousands of Haitian migrants were pouring over the border in September, several photos were taken of United States Border Patrol agents whipping Haitian migrants, with one “‘agent menacingly swing[ing] his reins like a whip, charging his horse toward the [migrants] in the river who were trying to return to an encampment under the international bridge in Del Rio.”’ Just as with the images of Afghans falling out of planes, the images of Haitian migrants being whipped at the border “spread like wildfire” and received international scrutiny and criticism. Although the White House condemned this attack on Haitian migrants as “horrific,” some have questioned whether or not the Biden administration has truly brought positive change from the controversial immigration tactics employed by former president Donald Trump and why mistreatment of migrants at the border continues to occur.

Both of these incidents, arguably caused or facilitated by the United States, brought back memories of another international incident in which the United States was involved approximately fifty years in our past: the end of the Vietnam War. In fact, some of the United States' most prominent political figures, including United States Senator Mitch McConnell, “have compared [the United States'] present retreat from Afghanistan to the ‘humiliating’ withdrawal from Saigon in 1975 at the end of the Vietnam War.” Between April 29, 1975, and April 30, 1975, images captured United States helicopters evacuating approximately 7,000 South Vietnamese refugees from Saigon as the North Vietnamese military was knocking on the door of Saigon. These images captured the moments when “desperate South Vietnamese citizens [were] swarming” the gates of the American Embassy in Saigon,” in a manner similar to the way in which Haitian migrants were swarming the border at the Rio Grande and in which Afghan refugees were swarming the C-17 Globemasters at the Kabul airport.

In the next twenty years following the swarming of the gates at Saigon, more than three million refugees fled Vietnam, Laos, and Cambodia to find refuge abroad. However, with the harrowing scenes captured in Kabul and at the border, it is apparent that twenty years is too long of a time to fix an increasingly desperate situation. Therefore, this Note will attempt to answer important questions related to how it is possible to use lessons from our past from the fall of Saigon, including by looking at policy and legal decisions, to inform how best to solve this next refugee crisis. In Part II of this Note, I will examine the factual context of the current refugee crisis, including the circumstances surrounding the crises in Haiti and Afghanistan, comparing them to the circumstances regarding Vietnam, and how the United States has contributed to--and tried to resolve--each of these situations. In Part III, this Note will examine the relevant legal issues and policy decisions regarding asylum-seeking and the resettlement of Vietnamese refugees. In Part IV, I will analyze the legal and statutory issues in Part III and apply them to the situation in Haiti and Afghanistan. In Part V, I will examine how, if all else fails, the international community can help--and has been helping--to alleviate this crisis. Finally, in Part VI, this Note will examine the challenges facing the future regarding the refugee crisis and what obstacles the United States, the international community, and the refugees impacted by the crisis will face going forward. In sum, this Note will suggest compassionate and practical solutions to inform how best to handle the refugee crisis in Haiti and Afghanistan using lessons from Vietnam.

[. . .]

The Afghan and Haitian refugee crisis is a human emergency that has been inefficiently addressed. Many of the problems these refugees have faced, as with Vietnamese migrants in the 1970s, were created by policies of aggression and imperialism levied by the United States in their nations. As a result, and compounded with political instability in both Haiti and Afghanistan from the assassination of President Moise and the return of the Taliban, Afghans and Haitians are fleeing their home countries.

There are several legal paths towards admission and assimilation for refugees into the United States, including the most applicable option, asylum, along with withholding of removal. Prosecutorial discretion, important for determining the fate of many applicants for admission, should be construed to favor refugees who are facing very real threats to their well-beings in their home countries.

However, as mentioned in Section VI, asylum applications, especially with Haitian migrants, are being processed very slowly and even could be influenced by racial discrimination. Therefore, using lessons from legislative actions after the Vietnam War, Congress should scrutinize both the refugee quota and the allocation of federal funding to the migration crisis, especially in the disparities of funding that Afghans are receiving versus Haitians.

It is impossible, however, to ask the United States to do all the work with this refugee crisis on its own. Therefore, the United States should also encourage the international community to help, as they did after the Vietnam War. While Afghanistan is receiving a plan like the Orderly Departure Program from Vietnam, again, less help is being provided to Haiti from the UN and the international community.

Finally, as did refugees from Vietnam, Afghan and Haitian refugees are facing many challenges. These obstacles include racial and economic discrimination, lack of access to basic care, and mental health issues, as well as trauma stemming from their lived experiences and violence. The United States, while accepting the help of private donations, should step up their game and contribute more funds to refugee assistance while considering culturally competent care and fixing the broken immigration system.

While many Vietnamese refugees were successfully integrated into the United States, many were left in situations of poverty, racial discrimination, and mental health issues. It is still early for the United States to take steps to prevent these issues in the Haitian and Afghan communities; however, as shown by this Note, several incidents show that time is running out. The United States should step up to the plate and take drastic measures to help these migrant communities, as their legal rights necessitate.

I am a third-year law student at Notre Dame Law School. I would like to thank my sponsor, Professor Rodolfo Monterrosa, and all of my Journal of Law, Ethics & Public Policy peers for their support throughout this process. Please note that this Note was conceptualized before the advent of the ongoing war in Ukraine, and thus the Ukrainian conflict is beyond the scope of this Note. It is my hope that scholarship may continue on this topic to apply these lessons to aid Ukrainian refugees and victims of war.