Can (and Will) Governors Save Immigrants From Deportation?
By Kurtis Lee
The two Cambodian refugees living in Northern California had been convicted of crimes years ago and, under the Trump administration's more aggressive immigration enforcement policies, those offenses had placed them on a path toward deportation.
But Saturday, Gov. Jerry Brown announced the pardons of both men _ Mony Neth of Modesto and Rottanak Kong of Davis _ saying they had paid their debts to society and now lived honest and upright lives.
Immigration is a federal, not state, responsibility, but attorneys for the men hope the pardons will eliminate the rationale for deporting them. Across the country, immigration attorneys are doing the same: seeking gubernatorial pardons in last-ditch attempts to forestall deportations or allow the deported to return to the U.S.
Targeting convicted criminals for deportation isn't a new idea; it was a priority under President Barack Obama, who deported more people than any of his predecessors. But during the Obama administration, only those with serious crimes on their records were targeted for removal. President Donald Trump has cast a much wider net.
Shortly after his inauguration, Trump signed an executive order directing the Department of Homeland Security to prioritize the removal of people in the U.S. illegally who have criminal convictions. In addition to speeding up the deportation of convicts, Trump's orders also called for quick removal of people in the country illegally who are charged with crimes and waiting for adjudication.
And federal officials began to act swiftly.
In June, immigration authorities in Michigan rounded up more than 100 Iraqi nationals with criminal backgrounds. A month later, about 40 of them asked Republican Gov. Rick Snyder for pardons.
Among those seeking a reprieve was Usama Hamama, 54, who co-owns a market in the Detroit area. Hamama, who came to the United States as a refugee when he was 11, was convicted of felony assault and carrying a gun in a vehicle in 1988. He was sentenced to two years in prison. Since 1992, he has faced the threat of deportation, but that hadn't been a real possibility until the Trump administration.
Hamama's attorney, Bill Swor, who works closely with the local chapter of the American Civil Liberties Union, described his client's crime as a low-level road rage incident. Since then, he said, Hamama has raised a family and opened his small business.
"A pardon would wipe clean this offense and his record," Swor said of Hamama, who is being held in a federal immigration detention facility in Michigan. "He was in the country legally when the offense occurred, so a pardon takes us back to that status."
Last month, Hamama's 12-year-old daughter, Lindsey, wrote a letter to a federal judge overseeing her father's case. She also sent a copy to the governor.
"All I want for Christmas," she wrote, "is my dad home and nothing else."
The governor's office has not made a decision on a pardon.
Illinois Gov. Bruce Rauner, a Republican, received a similar plea _ this one from an Army veteran with a felony drug conviction. Miguel Perez Jr., 39, joined the military in 2001 as a legal permanent resident and served two tours in Afghanistan.
In 2008, he was convicted of distributing less than 100 grams of cocaine. Perez, a native of Mexico, served half of his 15-year prison sentence but had his residency revoked as a result of the conviction and is being held in a detention center in Wisconsin.
Rauner hasn't decided whether he'll grant the pardon.
Gubernatorial pardons don't guarantee an immigrant facing deportation could remain in the U.S., but they might have an effect, said Jason Cade, an associate professor of law at the University of Georgia, who characterized it as a case-by-case issue.
For example, Cade said, if an immigrant has a drug conviction that makes them subject to deportation and that conviction is pardoned, then deportation should no longer be an option.
"The bottom line is that full and unconditional pardons should absolutely be effective as a defense against deportation in cases where the conviction triggers certain removal categories _ specifically those targeting aggravated felonies ... or multiple criminal convictions," said Cade, who has written extensively on immigration law.
Though the federal government may still have grounds to deport someone, Cade said, a pardon might lead authorities "to exercise favorable discretion."
But that hasn't always happened.
This year, Virginia Gov. Terry McAuliffe, a Democrat, pardoned Liliana Cruz Mendez, a mother of two who lived in the suburbs outside Washington. Cruz Mendez, who was in the country illegally from El Salvador, was stopped for a minor traffic infraction in 2014; her car had a blown-out headlight.
George Escobar, senior director at CASA _ an immigrant rights group in the Washington area _ called McAuliffe's pardon "a show of solidarity for her cause and the belief she should not have to leave this country."
"We had hoped that it would sway" Immigration and Customs Enforcement, said Escobar, who had worked to secure her pardon. "Unfortunately that was not the case."
Federal immigration officials deported Cruz Mendez this summer.
But for others, especially people with green cards or other legal status, pardons have helped. Another common thread: living in a state with a Democratic governor who perhaps is looking to push back against the Trump administration.
In May, Colorado Gov. John Hickenlooper, a Democrat, pardoned Rene Lima-Marin, who in 2008 was mistakenly released early from prison, where he was serving time for a robbery conviction. Lima-Marin, who had fled Cuba in the 1980s, got married, had a son and started working. Six years later, in 2014, Colorado officials realized the mistake and took him back into custody.
This year, days after a judge released Lima-Marin, Hickenlooper pardoned him. Even so, Lima-Marin sits in an immigration detention center, though his attorneys are hopeful he will be released.
"In terms of rehabilitation, he demonstrated an ability to contribute to the fabric of his community and Colorado," Hickenlooper said during a news conference around the time of the pardon. "He rebuilt his life. He's become a law-abiding, productive member of his community."
But in a different case this fall, Hickenlooper denied a pardon request from Ingrid Encalada Latorre, who has found sanctuary in churches throughout Colorado for much of the last year. Latorre, a native of Peru, has been living in the United States illegally for 15 years.
"We carefully look at each case and take a holistic approach when considering an application," Hickenlooper said in an email. "Clemency is not the solution to our country's broken immigration system."
In California, Brown, a Democrat, has issued pardons that touched the lives of those facing deportation as well as those already removed from the country.
In 2015, Brown pardoned Eddy Zheng, an immigrant fighting deportation after spending more than two decades in prison for a robbery conviction. Zheng and his family immigrated to the U.S. in the 1980s from China. He remains in the U.S. and became a naturalized citizen this year.
The pardons announced Saturday were granted to Neth, who was convicted on a felony weapons charge in 1995, and Kong, who was convicted on felony joyriding in 2003. In his pardon message, among several dozen issued, Brown said that since Neth and Kong left prison, both had gone on to become "law-abiding citizens."
Of Kong, he added, "Indeed, several individuals wrote in support of Mr. Kong, describing him as kind and generous, and as a role model to those who face insurmountable challenges in their lives."
Last spring, Brown pardoned two former Marines, Erasmo Apodaca Mendizabal and Marco Antonio Chavez, as well as former soldier Hector Barajas Varela. All three had received honorable discharges from the military but later were convicted of crimes and eventually deported.
An immigration judge reinstated Chavez's green card in November after Brown's pardon. On Thursday, after 15 years in Mexico, Chavez returned to the U.S.
Moments after walking across the border near San Diego, he told reporters that he could hardly believe that this year his Christmas morning would begin with a hug from his relatives.
(c)2017 Los Angeles Times