How a governor’s pardon can stop the deportation process
More from the series
Cambodian refugees face increased deportations under Trump
Democratic governors looking to push back on hardline Trump administration immigration policies have few options.
The federal government holds almost all the power to conduct foreign policy and control the borders, and U.S. Immigrations and Customs Enforcement says deportations take criminals off the street and make communities safer.
For some governors, including Washington’s Jay Inslee, there remains a powerful weapon: the pardon.
Pardons and the broad absolution they promise to those convicted of crimes have become a last-grasp savior for a handful of desperate Cambodian immigrants who have been targeted for deportations.
They also are rare, according to Kevin Lo, a staff attorney with the California-based Asian Law Caucus, which is why Cambodian refugees are looking to other legal options to try to stay in the only country many have ever known. Those include requesting that their criminal convictions be vacated or amended to charges for which they can’t be deported.
Deportations to Cambodia first began in 2002. Historically, according to the Khmer Vulnerability Aid Organization, a Cambodian nonprofit that works to acclimate deportees, roughly 45 people have been targeted each year.
In fiscal year 2018, under the Trump administration, that number jumped to 110. People with active removal orders against them, many of them convicted criminals, were targeted, according to ICE . It marked a 279 percent over the prior year, according to ICE. It also was the most Cambodian refugee deportations in a single year, according to the KVAO.
KVAO has been told to prepare for 200 deportees each year over the next six years.
Against that backdrop, Democratic governors face increasing pressure from anti-immigration forces to stop interfering with the deportations while immigrant-rights groups in places like Washington push for even more intervention from governors.
BEHIND OUR REPORTING
Why this story matters
While immigration-related stories dominate headlines, the stories of Cambodian refugees have gone largely untold.
Read more by clicking the arrow in the upper right.
An under-reported issue
In January, The News Tribune’s Matt Driscoll first met with Lorng Raing, a Cambodian refugee whose family fled genocide and civil war and arrived in the United States in 1981. At the time, Lorng’s son, Roeuth An, had recently received an emergency, expedited pardon from Washington Gov. Jay Inslee for a crime he committed more than two decades earlier. Prior to receiving a pardon, An was facing deportation to a country his family fled four decades earlier. Subsequent reporting conducted by The News Tribune, including interviews with officials with U.S. Immigration and Customs Enforcement, illuminated both a recent increase in deportations to Cambodia and the reasons for it.
At the same time, dozens of local interviews conducted by The News Tribune revealed similar stories from families in the small Cambodian community that was being affected by the increase.
The Cambodian community
While Seattle-Tacoma has the third largest Cambodian population in the nation, according to recent Census estimates, overall it’s a tiny community, making up far less than 1 percent of the overall U.S. population.
It’s also a refugee population with a historically unique story in the United States, rooted in a genocide that many say the U.S.’s involvement in the Vietnam War helped lay the groundwork for.
Who did we speak to?
The push for gubernatorial pardons is part of a growing movement to protect Cambodian refugees who came to the United States as children, established themselves with businesses and families, but whose records have been blemished by crimes.
In California, former Gov. Jerry Brown issued five pardons to Cambodian refugees facing deportation during his time in office. New York Gov. Andrew Cuomo also has issued pardons saving immigrants from deportation.
More recently, in March, the Asian Prisoner Support Committee, Asian Law Caucus and the liberal Daily Kos circulated an online petition asking new California Gov. Gavin Newsom to grant pardons to all Cambodians facing “imminent deportation.” The petition has since been signed by more than 15,000 people.
On Friday, May 10, a group of Cambodian mothers gathered at California’s capital in Sacramento to urge Newsom to use his pardon authority to stop Cambodian deportations. The following Monday, Newsom granted pardons to two Cambodian refugees facing potential deportation.
To date, Inslee has issued two pardons to Cambodians facing deportation.
‘There’s a real weight to it’
Sophy Hem, a Cambodian refugee who entered a guilty plea to second-degree assault, first-degree unlawful firearms possession and drive-by shooting in 1997 for a crime he committed when he was 16, received a pardon from Inslee in July 2018.
Roeuth An, a Cambodian refugee convicted of three counts of second-degree assault related to a drive-by shooting in 1992, received an expedited emergency pardon five months later.
The governor’s office doesn’t take such decisions lightly, said Taylor Wonhoff, Inslee’s deputy general counsel, who advises the governor on pardon reviews.
For people with a criminal conviction that resulted in a final order for removal, pardons — which have the power to essentially erase those convictions — can often represent a last ray of hope, Wonhoff said.
His sentiments were echoed by others on Inslee’s staff.
“I think there’s a real weight to it, in recognition that the governor has people’s families and futures and lives in his hands sometimes,” said Tara Lee, Inslee’s deputy director of communications. “The governor and our legal team obviously take these things very, very seriously.”
Both Hem and An, Wonhoff said, met the criteria that the Clemency and Pardons Review Board and the governor look to when deciding whether to grant relief. Not everyone does, he said.
The criteria includes weighing statements from the involved prosecutor’s office and victims, the nature of the criminal offense, a petitioner’s felony history beyond the conviction as well as his of her relationships with family and the community.
For Hem and An, all the boxes were checked, Wonhoff said.
“These convictions were both over 20 years old. In both cases, these individuals served a criminal sentence and following that had no other felony activity on their record, so they largely lived within the bounds of the criminal justice system,” Wonhoff said. “They had jobs and they had families, and they supported their families by working. They’re just important contributors to their families and to their communities.”
Wonhoff said that interest in pardons, particularly in the small Cambodian community where news has traveled fast, has increased. The same holds true for other communities facing potential deportations under the Trump administration, he said, especially since Hem and An received relief from Inslee.
“There are petitions for pardons with immigration-related elements to them, and we’re seeing them almost every quarter now,” he said. He added that it’s “not something that’s new, but there certainly is a great degree of interest and fear, at least anecdotally.”
Since 2014, Inslee’s office has issued 12 pardons with the potential to provide deportation relief. Two-thirds of those have come since 2017, during President Donald Trump’s time in office. There were four in 2018 alone, including An and Hem’s.
Overall, Wonhoff said, Inslee has issued 80 pardons since January 2014, including to people with criminal charges ranging from serious felonies like assault and robbery to misdemeanor pot convictions.
For refugees potentially facing deportation, there is a drawback to pardons. The process is lengthy, and by the time ICE notifies an individual of their pending deportation and detains them, it’s often too late.
That’s one reason immigrants’ rights advocates and activists in the Cambodian community in Washington have urged the governor’s office to find ways to speed up and streamline the process.
“I hope that the government and the community can continue to work toward giving chances for folks that are in this predicament to be able to stay, because it’s not right that they’re being sent back,” said Lorng Raing, An’s 67-year-old mother.
According to Many Uch, a 43-year-old Cambodian refugee living in Seattle, speeding up the pardon process for refugees facing deportation could make a big difference.
Uch, who serves as a senior adviser to the local Khmer Anti-Deportation Advocacy Group and was featured in the 2007 documentary “Sentenced Home,” notes that the standard pardon process can sometimes take six months or a year, even if everything goes smoothly.
Cambodian refugees don’t have that kind of time since increased deportations to Cambodia started under the Trump administration, Uch said.
“You have this two-month maximum time frame from when the person is taken into ICE custody and the day they get shipped out,” Uch said. “You need to do something between then. It should be quick, before the travel documents come and they’re off.”
Wonhoff said the governor’s office prefers petitioners go through the established process, including a public hearing in front of the Pardons and Clemency Review Board, but acknowledged the office has heard concerns.
There have been “some conversations … in very early stages right now” about ways to potentially speed things up, he said, inspired in part by ideas recently shared by the King County Prosecutor’s Office.
“Maybe there’s some wiggle room for us to find some incremental improvement in our processes,” Wonhoff added.
Other legal options
Beyond pardons, there are a few other legal rays of hope for Cambodians facing deportation, fighting for the lives they’ve built in the United States.
Some — like Thuoy Phok, a 43-year-old Cambodian refugee from Tacoma who faced deportation in late 2018 for a firearms possession charge he pleaded guilty to in 1997 — were able to convince a judge to vacate the convictions that led to their removal order.
Others have gotten the charges against them amended to non-deportable offenses.
With the help of immigration lawyers, others have challenged the validity of the removal orders themselves.
Victories like that are hard fought and fraught with legal and logistical challenges.
In Washington, according to the Northwest Immigrant Rights Project, seven people were detained in late 2018, targeted for deportation in December. Of those seven, four men ended up being deported.
Across the country, the success rate is low, according to Lo with the California-based Asian Law Caucus.
According to Lo, an early manifest for ICE’s December 2018 deportation flight to Cambodia’s capital of Phnom Penh included the names of 46 Cambodians targeted for deportation. Of those, 36 ended up getting deported, with the rest avoiding deportation through stays and pardons.
“Successful challenges are rare,” Lo said, most likely because of “the lack of legal and financial resources available to the Cambodian refugee community.”
According to ICE officials, of the 36 individuals deported last December, 34 had criminal convictions. The other two, Lo said, might have overstayed their visas.
“Federal immigration law, as enacted by Congress, requires the removal of an unlawfully present alien to their country of origin after an immigration judge issues a final order of removal,” ICE told The News Tribune in a written response to questions.
“Federal immigration law provides robust procedures for aliens to challenge their removal from the United States before an immigration judge,” the agency said. “If, after these full and fair procedures are provided, an alien is ordered removed and denied relief from removal by an immigration judge or appellate tribunal, it is ICE’s legal duty to execute the alien’s removal order.”
The problem is that federal immigration law is a tangled mess, according to Tim Warden-Hertz, the directing attorney of the Northwest Immigrant Rights Project’s Tacoma office.
It’s filled with miles of gray area, Warden-Hertz said, often requiring attorneys and immigration courts to grapple with the mismatching intricacies of state law, where nearly all deportable convictions happen, and federal immigration law.
What’s more clear is that a 1996 federal law, approved by Congress and signed by President Bill Clinton, significantly broadened the list of deportable misdemeanors and felonies while also limiting individuals’ ability to challenge deportations. Warden-Hertz described it as “a nasty law that dramatically expanded offenses that automatically lead to deportation.”
At the time, the United States wasn’t deporting people to Cambodia. There was no repatriation agreement between Cambodia and the United States.
This, Warden-Hertz said, shouldn’t be underestimated as the increase in Cambodian deportations continues. Over the years ,it has influenced many clients’ decision to sign a removal order and give up the chance of a legal challenge, he said.
“I think it sort of blurred those lines a little bit,” Warden-Hertz said. “A lot of the people we’re meeting with, they didn’t necessarily fight their cases in immigration court because that meant they would stay detained fighting this case. Whereas if they just signed a deportation order they got out, and they weren’t getting deported anyway.”
This is one of the reasons that, in addition to speeding up the pardon process, Uch and others involved with the Khmer Anti-Deportation Advocacy Group are pushing for things like increased access to free or low-cost legal assistance for refugees facing deportation and easier ways for refugees to reopen old removal orders or criminal convictions.
A changing and dynamic law
When asked what makes an offense deportable, Warden-Hertz pulled out a thick immigration statue and started going through it line by line.
The question, he said, “is one of the most difficult parts, and most changing and dynamic parts, of immigration law.”
Federal immigration law contains a long list of misdemeanors and felonies that are potentially deportable, ranging from murder and rape to certain drug offenses to violations of no-contact orders. The list also includes at least 20 aggravated felonies as well as some firearms convictions and crimes of violence — like domestic violence, child abuse and stalking. It also includes terrorism.
There’s also an ambiguous section reserved for “crimes of moral turpitude.” Even the U.S. Justice Department has acknowledged that a crime of moral turpitude “is difficult to define with precision.”
Deciphering it all and then accurately presenting a case in court is challenging. Mistakes are made, Lo and Warden-Hertz said.
The Asian Law Caucus has helped clear two Cambodian individuals who were previously deported, Lo said, with one coming in early February. Both have since been returned to the United States.
Instances like that are rare, immigration lawyers like Lo and Warden-Hertz said. In most cases, a person who is deported will never be allowed back in the United States.
Lo and Warden-Hertz said ICE’s insistence on focusing on sometimes distant criminal convictions deliberately ignores the lives their clients have often led since their release from prison.
Lo also said ICE’s rationale “completely ignores the context in which these things happened.”
“Obviously, people change after two or three decades,” Lo said. “We’re talking about a refugee population that came with nothing except essentially the clothes on their backs. They were not given any support in order to start a new life here, and the fact that they arrived right when various states were doubling down on gang enforcement and criminalizing certain communities, it was just a perfect storm for these young refugee teenagers.”
According to ICE, the agency “prioritizes its enforcement resources on individuals who pose the greatest threat to national security, public safety and border security.”
“These are folks who when they were young, came as refugees fleeing terrible violence and were put in this tough situation. As teenagers or young men, they got involved in trouble, served their time and got out. Now, were talking 20 years later often for some of these folks, they’re facing deportation,” he said.
“In those 20 years, things have often been really, really good. They’ve put their lives together. They have families. They’re supporting their families, and they have good jobs. They’re important parts of our community,” he added.
“It’s hard to come up with a good reason why they’re being targeted now.”