The Fight to Stop One Man’s Deportation

The Fight to Stop One Man’s Deportation

The Fight to Stop One Man’s Deportation

Sokha Chhan had an extraordinary attorney, a fearless sister, and the benefit of a new California law. Still, he would need all the luck he could get.

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In 2011, KC Chhan was walking along the riverfront in Phnom Penh with her family. She lives in Fresno, California, and fled Cambodia as a child refugee. The trip back was already an emotional one, but then KC was approached by a man asking for food.

“He said he was from Stockton,” a Northern California city just a few hours from Fresno. He told her he’d been deported, KC said. “And he got teary-eyed—he told us that for people who have been deported, it’s not easy here.”

Many Cambodian deportees grew up during the chaos and terror of the Khmer Rouge and were born in refugee camps, and so have neither set foot in Cambodia nor speak Khmer. Many struggle to find stable work and mental-health care. “Some have committed suicide,” KC said the man told her.

There are soon to be many more joining the man KC met. On April 5, 43 Cambodian Americans with a one-way ticket from the United States landed in Phnom Penh. The flight held the largest group of deportees the US had repatriated to the Southeast Asian country since the nations signed a memorandum of understanding in 2002.

After years of accepting only a handful of deportees a year, the Cambodian government signaled in late 2017 that it would begin accepting more. The Trump administration responded by rounding up people with deportation orders in the Cambodian community, which in the US is largely made up of refugees who immigrated in the 1970s and 1980s. As President Trump amps up the pressure to remove every deportable non-citizen from the US, even longtime residents and those who came to the States as child refugees have become targets.

“When he was telling me his story,” KC said of that river walk, “it reminded me of my brother. I was thinking—this would be the life for him if he were to be deported.”

When Sokha Chhan, KCs older brother, was detained by Immigration and Customs Enforcement (ICE) last October, he was not surprised. The US had been trying to deport Sokha since early 2008, after he was convicted of two misdemeanors for a domestic-violence incident in 2002. Sokha had heard that ICE had picked up others in the Cambodian community, and so when he received a phone call summoning him to his local ICE office, he figured his time in the US was up.

“I told my son where I parked my car before going in, just in case,” Sokha said. He didn’t consider fighting or fleeing. But one of the first things Sokha’s son did when he learned his father was taken into ICE custody was call KC.

The Chhans have always been a tight-knit family. Sokha and KC are the eldest of 10, and the only two of their siblings who were born in Cambodia before the Khmer Rouge came to power in 1975. The trauma of war forced a closeness that’s carried through to this day. “It’s something you can’t relay to other people who don’t know what it’s like to grow up under a repressive regime,” explained KC, a schoolteacher.

“The regime basically starved everyone in the country,” she added. “When we were kids, Sokha had gone out to find food for us and he was caught. One reason he wasn’t executed was because my mom and other elders begged for his life.”

The family escaped to California’s Central Valley in 1981 as refugees after spending two years in a Thai refugee camp. Sokha has been a legal permanent resident since. He’s worked as a donut baker for most of his adult life.

Once he became a father himself, KC said, Sokha extended the same care to his own children that he’d shown as the eldest brother. “Unfortunately, he got swept up with a woman who was not very stable,” KC told me. “And I say that his relationship with her was unfortunate because he’s the kind of person who just wants to protect his family. And he ended up with someone who hurt his kids.”

Sokha doesn’t flatter himself. Instead, he described his relationship with his then-common-law wife in simple terms: It was dominated by her gambling addiction. “We were always broke; we had no money all the time,” Sokha said. “My kids didn’t have anything.” He and his ex got together when Sokha was 23 and have five children together. For years he was committed to sticking it out with her for their kids.

His ex controlled the family’s finances and demanded that he give all his earnings to her. When Sokha refused, she’d show up at the donut shops where he worked to harass his bosses for his pay. Soon it became easier just to hand her his paychecks directly. One of Sokha’s old bosses, Charyn Pen, confirmed this. “When it’s payday, his wife always took money from him, and even though they have a lot of kids, they had no food,” Pen said.

And then one night in 2002, Sokha and his ex got into one of their biggest fights after she told him that she’d been swindled out of money by someone who ran a local gambling game. Sokha isn’t sure what made that night different, but while the two screamed and yelled at each other, he got so angry he threw a chair and the kids’ toys. And then, he said, he hit her. 

“That’s the only time,” Sokha told me. “I did it. It was a bad thing. I did the crime.”

A neighbor called the cops; Sokha was arrested; a few days later, at his first hearing, he accepted a harsh plea deal. He pleaded guilty to two of the three charges he faced, both as felonies, even though he had no criminal history. One charge, under California’s Penal Code 273.5, was for the domestic violence, the other, a 422 charge, for making threats to do harm. He was sentenced to 365 days in jail.

Sokha told me he chose the most expeditious route to resolve his criminal case because he didn’t want to put his family through a protracted legal fight. He wasn’t thinking about the immigration consequences. He assumed that as a green-card holder, and a refugee no less, he couldn’t be deported. As a legal permanent resident, he took the word “permanent” literally.

But Sokha misunderstood how the US treats people like him. As a non-citizen who’d been convicted of a crime that carried a 365-day sentence, he was now considered an aggravated felon in the eyes of immigration authorities. Aggravated felonies sound serious, and many are, but Congress has progressively expanded the list of crimes that count as such for the purposes of immigration enforcement. The landmark change came in 1996, when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA, pronounced “Ira Ira”), which broadened a list of offenses once limited to homicide, rape, and kidnapping to include dozens of acts, including minor drug crimes, public urination, forgery, and counterfeiting. As a result of that legislation, if an immigrant writes a bad check or sells a fake designer handbag, the person can be deported as an aggravated felon.

“Aggravated felonies are often neither aggravated nor felonies,” said Alisa Wellek, executive director of the Immigrant Defense Project in New York. But they often carry with them the most severe immigration consequences.

Under IIRIRA, non-citizens who are labeled aggravated felons are stripped of the right to petition a judge to allow them to stay in the United States. In Sokha’s case, his 365-day sentence meant that an immigration judge would be barred from considering the totality of Sokha’s case—his relationship, the five children who depended on him, and the fact that he had served in the Army Reserves—and would be required to send Sokha away for removal. Immigration attorneys say that immigrationcourt hearings for those considered aggravated felons take only five minutes because judges have no discretion. 

Sokha didn’t know any of that when he applied to replace a green card in 2006 after he was released from county jail. In February 2008, instead of his new green card, he received what’s called a notice to appear, alerting him that the federal government intended to begin removal proceedings.

That’s when KC, whose rabble-rousing fearlessness is as deeply ingrained as her brother’s deference to government institutions, picked up the phone. She got in touch with Raha Jorjani, who at the time was a supervising attorney at the immigration clinic at the University of California, Davis, School of Law. Jorjani stepped in and, after ICE detained Sokha in 2009, won his release. The federal government issued a deportation order in July 2009, but because Cambodia accepted very few deportees at the time and the federal government can’t lock up people with deportation orders indefinitely, Sokha was freed from ICE custody under the condition that he show up at ICE offices for regular check-ins.

He did that faithfully for eight years, until October 2017, missing just one check-in when he mixed up the dates.

In the intervening span, Sokha legally became the primary caretaker of his kids that he’d unofficially been for years. He had not intended to put up a custody fight, preferring not to challenge the government’s initial decision to limit his contact with his children. But one night his ex-wife ran after one of their sons with a meat cleaver. “He locked himself in the bathroom, and she started hacking away at the bathroom door,” Sokha, who was not there that night, said. A neighbor called KC, who urged Sokha to step in. The court awarded Sokha full custody of the couple’s five kids.

Meanwhile, Sokha kept working to support his family, almost never taking time off. “I made sure my kids got everything they needed,” he said. “Not everything they wanted. But everything they needed.”

Most donut bakers like Sokha work long nights mixing, kneading, proofing, and frying their donuts so the pastries are fresh in the morning. The nocturnal schedule suited Sokha, who, as is also common for donut bakers, worked seven days a week. By working nights he could drop his kids off at school in the morning after a shift and pick them up from school in the afternoon. Whether it was making it to dance practices or school functions, Sokha always made sure his kids were taken care of, his daughter Pisey said.

“The crazy thing is, as busy as he was, when we called him, he was always there,” Sokha’s youngest son, Volek, said.

A few days after one of his usual ICE check-ins last October, Sokha received a call summoning him back. This was unusual; he’d just been at the office and typically wouldn’t need to check in for another two months.

He returned to the office, and was detained. Once his old attorney Jorjani got word, she raced to find some new relief for Sokha. By now she had moved on to a position in the Alameda County public defender’s office, and took on Sokha’s case pro bono. “There was no way I was going to let him fight this on his own,” Jorjani said.

Back in 2009, one of the things Jorjani did for Sokha was to go back to criminal court and, with the help of the Fresno public defender’s office, petition to have Sokha’s felonies reclassified as misdemeanors. More than five years after he’d been released from jail, it was a straightforward request. “He was off probation, and he had no new incidents, and this was the only trouble he had had with the law,” Jorjani said. But because his newly reclassified conviction still came with a 365-day sentence, it did not change the fact that immigration authorities considered Sokha an aggravated felon.

Yet in September 2016, just months before Sokha was re-detained, California enacted a law to help people in exactly his position. SB 1242 amended California’s Penal Code so that any offense with a potential 365-day sentence would now carry a maximum 364-day sentence. That one day, a minor change for the code, is a crucial difference for non-citizens who, like Sokha, are subject to immigration consequences in addition to their criminal sentences. 

Importantly for Sokha, SB 1242 is retroactive. The law is a rarity, but California isn’t the only state with such legislation. Washington State passed a version of the law in 2011, capping the maximum sentence for gross misdemeanors at 364 days. In 2013, Nevada passed a similar law. Other states are making moves in the same direction; the Immigrant Defense Project is spearheading a campaign to pass a similar bill in New York. In April in Connecticut, HB 5544, which would cap the punishment for any offense with a maximum one-year sentence at 364 days, cleared the Judiciary Committee with bipartisan support.

“We want to make sure that we remove the inherent bias against immigrants and connect our immigration policies with public-safety policies and sentencing policies,” said SB 1242’s sponsor, California State Senator Ricardo Lara.

The push to enact these policies has taken on a new urgency under an administration that has aggressively pursued non-citizens for deportation. Those, like Sokha, with old deportation orders who have been released from detention but check in with ICE regularly are the lowest-hanging fruit. They are deportable, and they’re not in hiding.

While statehouses, especially in blue states, have shown a renewed appetite for pro-immigrant legislation in the Trump era, the campaigns to secure these policies predate his administration. Annie Benson, senior directing attorney at the Washington Defender Association, said the battle to get Washington State to pass its sentence-reduction law began in 2000, just a few years after the passage of IIRIRA. It didn’t take long, Benson said, to see IIRIRA’s devastating consequences. 

But Benson stressed, “This is not a special deal for immigrants.” Sentence-reduction work for her is part of a larger effort to reform the criminal-justice system and move toward fairer sentencing for everyone. “A bigger problem is, why are we imposing the maximum in every case at all?” she said.

“It took 10 years of educating judges and prosecutors and bringing this into the public arena before it was OK to go for a legislative fix,” Benson added. “In the meantime, countless people got deported because of this.”

While it’s hard to say exactly how many people have been deported thanks to the 1996 law, it laid the foundation for deportation enforcement that Bush ramped up, Obama expanded, and Trump has doubled down on. In 1996, the United States deported nearly 70,000 people. At its peak in the Obama years, deportation climbed to more than 400,000 immigrants a year.

In the Trump era, when Border Patrol officers are apprehending record-low numbers of people at the US-Mexico border, the Department of Homeland Security has bolstered its arrest numbers by turning its attention to stepped-up enforcement of the interior. That’s meant raids, workplace immigration audits, and stalking courthouses, hospitals, and school drop-off sites. 

More than that, ICE’s new arrest-everyone zeal has led to the disintegration of prosecutorial discretion—the idea that ICE, as a law-enforcement agency, has the power to decide who it does and doesn’t want to expend its limited resources to apprehend. Under the executive order Trump issued in his first weeks in office, ICE agents are now being told to arrest anyone who may be deportable—including those whose crimes, to the extent that they’ve even got records, are decades old. Even those who came to the US as child refugees.

So the movement for post-conviction relief has accelerated, especially in California, home to the country’s largest undocumented population. Trump has retaliated against California for its resistance with raid after raid. A city, a county, even a state can declare itself a sanctuary for immigrants, but that designation doesn’t stop ICE from dropping in and terrorizing immigrant communities.

Organizers and advocates in California, Washington, New York, and Connecticut say it’s almost impossible to gauge how many people these post-conviction policies could aid since criminal courts do not keep data on immigration statuses. “One challenge is that we are hopelessly low on data,” said Rose Cahn, criminal and immigrant-justice attorney at the Immigrant Legal Resource Center, which authored California’s version of the bill.

But since SB 1242 was enacted, Cahn said, she’s fielded about 10 to 15 queries a week from California attorneys looking for more information about how to take advantage of the new law. When Sokha’s attorney Jorjani petitioned to reduce his sentence by one day, he was among the earliest beneficiaries of the law.

The Department of Homeland Security fought Jorjani, arguing that California’s new statute ought to be ignored. A judge disagreed and granted Sokha’s request. He is no longer considered an aggravated felon, which made it possible for Jorjani to move toward the ultimate relief for Sokha.

In late January, an immigration judge granted Jorjani’s request to reopen his case. Motions to reopen can be granted sua sponte—meaning judges can grant them of their own accord. Granting a motion to reopen signals that a person has a compelling case that their deportation order ought to be canceled. That move also made Sokha eligible for release from immigration detention.

On January 29, dozens of Sokha’s family members drove more than three hours from the Central Valley to pack a San Francisco courtroom while Sokha appeared via teleconference from a detention center in Elk Grove, some 85 miles away, for a bond hearing. After paying the $3,000 bond, KC continued the family caravan up to Rio Cosumnes Correctional Center, where Sokha had been held, and picked him up.

And then, on March 30, California Governor Jerry Brown pardoned Sokha. “He has shown that since his release from custody, he has lived an honest and upright life, exhibited good moral character, and conducted himself as a law abiding citizen,” Brown’s pardon statement read. “Sokha Chhan has paid his debt to society and earned a full and unconditional pardon.”  

His was one of 56 pardons and 14 commutations that Brown handed out on Good Friday. Five of those pardons went to immigrants who, like Sokha, faced deportation as a result of some crime they’d committed.

Securing a gubernatorial pardon for Sokha “doesn’t make me now feel, ‘Oh, the pardon worked, I’ll just go out and get more of those,’ ” Jorjani cautioned. “I don’t think gubernatorial pardons alone can be relied on as a realistic strategy to stop most deportations. They are different than other forms of post-conviction relief,” she said, precisely because they require such extraordinary cases. 

For Jorjani, Sokha’s case is special because of her personal bond with his family. She and the Chhans are close; they’ve spent time in each other’s homes and celebrated their victories together. Also, for almost a decade now, Jorjani has cited Sokha’s case in speeches and reports as an example of how terribly unjust the system can be for non-citizens who are convicted of crimes. Sokha’s story was cited in an amicus brief for a landmark 2010 Supreme Court case where the High Court found that criminal-defense attorneys must inform their clients of the immigration consequences of criminal convictions.

“His story has been used effectively to advocate for changes in the law so other people can gain,” Jorjani told me. “And I’m happy and relieved that he too himself is now in a position to benefit from the laws that were passed with the help of telling his story.”

It’s clear to advocates that plenty of people who have been deported should have been able to claim relief. In the wake of the raids on the Cambodian community last fall, attorneys with Asian Americans Advancing Justice–Asian Law Caucus in San Francisco were able to interview dozens of detainees. They didn’t get to interview everyone, said Anoop Prasad, an Asian Law Caucus staff attorney, but at least 25 percent of the people they spoke to “had deportation orders that were not legally valid because they were based on legal analysis that was later rejected or found unconstitutional.”

Many of the people who were ultimately deported this spring just weren’t able to find representation in time, Prasad said. Immigrants have no right to government-appointed counsel in immigration court, and research has shown that access to an attorney is often the difference between life in the US and banishment abroad.

When KC found out her older brother had been taken into immigration detention in October, her family’s world shattered. “It was like the family experienced a sense of death, because there was so much mourning involved,” she said.

What’s more, this episode reminded her of the repressive regime her family fled to America to escape. “You don’t expect someone to just take your family member away. That’s what people did back home in Cambodia. People would show up at your door and say, ‘Hey, we’re taking your dad away,’ ” KC said. “I thought that nightmare was over for our family.”

Now her family feels whole again. While Sokha was detained, their mom lost 15 pounds. She’s started eating again, and she doesn’t cry herself to sleep at night anymore, KC said.

So KC was not that concerned when Donald Trump himself tweeted about Sokha’s pardon early one Saturday morning in March. He blasted Governor Brown’s pardon of, in Trump’s words, “five criminal illegal aliens whose crimes include…badly beating his wife and threatening a crime with intent to terrorize.”

Still, for KC, Trump’s calling her brother “illegal” was galling. “It’s disappointing, but I bet you many people would say that’s to be expected from a president who doesn’t understand basic concepts,” KC said. “There’s nothing illegal about being a refugee.”

And the Chhans, who have never downplayed the seriousness of domestic violence, still believe that the punishment meted out to immigrants convicted of crimes is inhumane. KC told me: “We punish someone by sending them to jail, and then punish them by detaining them, and then punish them by deporting them? How many times are we going to punish people?”

On April 5, Sokha was not on that flight to Phnom Penh. He was in Fresno, already at work. His old boss leased a space that’ll be a new donut shop, and he’s been finishing some of the construction. Once it opens, Sokha will go back to his nighttime donut-making hours. But hell also turn 50 this year. He’s decided he’ll ask for at least a day off every week: “I could do that when I was younger, but now I cannot work seven days a week.”

Having a deportation order hanging over a person, Sokha said, “means that you are on probation for life. ICE can take you and ruin your life at any time.” Now, he said, “I feel less stress about when I’m going back to jail. I’m very relieved.”

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