Reducing the Risk of Deportation

A genocide survivor from Thailand brought her family, including 6-year-old son Ched, to the United States in 1986. Some of her children did not survive to emigrate. The family settled in Faribault and began to recover from life in refugee camps in Thailand and the Philippines. Her young son was eventually convicted of a felony assault for an incident involving a BB gun. He served his sentence and reformed his life, eventually meeting and marrying Jenny Srey, starting a family, and working for more than 20 years as a carpenter.

KaYing Yang

In 2016, U.S. Immigration and Customs Enforcement (ICE) detained Ched and seven other Cambodian Americans, because of convictions years earlier.

Srey recounts, “My in-laws live with us and I could see the trauma that was caused, that [his mother] was experiencing as my husband, her son, was detained. Having to lose another child so forcefully was very traumatizing.”

Community grassroots organizing, and national attention, produced a movement that led to three of the detainees being released. It also led to the formation of ReleaseMN8, which provides support to Southeast Asian families impacted by detention and deportation, community organizing, and leadership development for social and political change around immigration law.

Srey, who co-founded ReleaseMN8, is an organizer with the Coalition of Asian American Leaders (CAAL). She is bringing attention to the limitations of a Minnesota law that requires post-conviction relief (PCR) claims be filed within two years of being released from incarceration.

If an immigrant is convicted even of a non-violent or minor offense, many years later that conviction can lead to deportation orders. Filing a PCR claim can relieve that stress, but only if people know the process exists, what it does, and understand that the opportunity currently ends after only two years.

“Many people don’t know the complexities of criminal justice laws and they try to exit the criminal justice system as quickly as possible, taking plea deals,” says Srey.

Decades-Old Convictions

The label of “criminal” includes collateral consequences that restrict access to housing, jobs, and loans. For immigrants, that label also includes possible detention and deportation with a decades-old conviction.

PCR allows a convicted individual to show they did not receive effective legal counsel, enables a request that sentencing be reconsidered based on new evidence, or offers an opportunity for a new evidence request after a successful appeal.

When an immigrant or refugee is convicted of a crime, they are not always informed by authorities of the immigration implications. Prior to 2010, it was not seen as a criminal defense attorney’s duty to make sure a client understood that a conviction could lead to deportation. The U.S. Supreme Court case, Padilla v. Kentucky, obligated defense attorneys to tell clients about this reality, which is why it is critical for people with convictions more than 10 years old to file for relief.

Local community organizers have supported Minnesota’s HF 3975/SF 4087 legislation, which aims to add an immigration- related exception to the two-year time limitation. In past legislative sessions, post-conviction relief legislation was never introduced in the Republican-controlled Senate.

According to CAAL, the strict time limit is unusual among states, and does not recognize that the consequences of a conviction might not become apparent to the person until decades later.

As a CAAL fact sheet explains it: “This is especially true in the ever-shifting world of immigration. The retroactive nature of many of our federal laws has triggered people with old criminal convictions who are now facing deportation several years after they were convicted.”

As the ACLU explains: “Because of harsh laws that mandate severe penalties for non-citizens who come into contact with the criminal justice system, an arrest that might typically lead only to probation or a few weeks in jail can trigger months or years spent in immigration detention and eventually deportation to a country they may barely know.”

Family Impact

Organizers have been trying since 2018 to pass the immigration extension.

“More legislators are beginning to understand the intersection of criminal and immigration systems,” Srey explains. “We know very well there are racial disparities with how our communities are being criminalized and sentenced. So each sentence matters.”

According to Immigrant Justice, data from the U.S. prison population indicates that non-citizens comprise 19 percent of the total federal prison population, yet only make up 13.5 percent of the total U.S. population.

Says the Immigrant Law Center: “There is absolutely no evidence that Black immigrants commit crimes at a higher rate than the overall immigrant population. However, while Black immigrants make up only 7.2 percent of the non- citizen population in the U.S., they make up 20.3 percent of immigrants facing deportation on criminal grounds.”

Activists also urge state legislators and community to understand that lack of post-conviction relief doesn’t only negatively affect communities of color. “I think post-conviction relief is helpful to everyone, not just to Southeast Asian communities or anyone who has a deportation order, but anyone who is seeking relief,” says KaYing Yang, Director of Programs and Partnerships with CAAL.

According to immigration advocates, proposing PCR legislation is just one avenue to fight for the rights of a community experiencing injustice.

“Many families I know become impoverished or develop stress and mental health issues because of one individual who is going through the criminal justice system or through deportation,” says Yang. “The impact is not only on those 700 individuals. It is on those 700 individuals and their family members. Each individual may have a family of 5 or 10, so if you do the math, you can see that [deportation has a wide community impact].

“The hardship on families, on the partners, on the children is very serious,” Yang added. “We are not just talking about the individual. We are talking about the whole family.”