Justice Denied & Families Torn Apart: The Case for AB 813

Mural by Martin Travers
Mural by Martin Travers

“This came for you in the mail from Immigration,” said Sann Chey’s* 13-year-old son as he plopped a large envelope down on the table next to where Sann Chey sat, helping his youngest son, age 11, struggle through his math homework. Sann Chey opened the package, expecting to find the green card that he had requested to replace his old one, where the paper had begun yellowing and laminate was peeling off with age. He couldn’t believe it when he read the notice inside.

Instead of his new green card, the package contained a letter notifying Sann that he needed to report to Immigration and Customs Enforcement (ICE) immediately, because he was subject to mandatory immigration imprisonment to be followed by mandatory deportation.

Sann Chey had lived in the United States for three decades as a lawful permanent resident. He came to the United States as a child refugee, along with his parents and siblings, fleeing the “killing fields” of Cambodia. His family settled in California’s Central Valley and Sann built a successful life in his adopted country. He graduated from high school, served in the U.S. Army, found steady work as a mechanic, and married a U.S. citizen together with whom he had five sons, all U.S. citizens.

Today, however, his future is again in jeopardy. Sann awaits deportation to Cambodia, a country he hasn’t seen in 35 years, and his children, ranging in age from 11 to 18, risk losing their father and sole legal guardian. All because of one single misdemeanor conviction that Sann pleaded guilty to years ago. A California bill, AB 813, being heard Tuesday by the State Assembly’s public safety committee, could change this.

According to Sann, his wife had an addiction. Their marriage suffered and, in 2002, the police came to Sann’s home to settle a dispute. Police charged Sann with domestic battery. He met with a public defender but, “I knew what I did was wrong, so I did not want to fight the charge,” he explained. Despite case law requiring defense counsel to advise noncitizen defendants about the immigration consequences of admitting guilt. Sann’s defense counsel never informed him that entering a misdemeanor plea would effectively be equivalent to signing his own deportation order. Sann blindly entered a guilty plea and served his time.

After his release, a California court awarded Sann sole custody of his five children because it determined he was most qualified to care for them.

“I honestly never thought I could be deported. I had been here for so long, more than 20 years, I had even served in the U.S. Army, so I thought I would go to jail and that would be it.”

But serving his brief jail sentence didn’t end Sann’s horror, just as it doesn’t end the horror for the nearly 200,000 immigrants a year deported as a result of criminal convictions. Eighty-three percent of the individuals deported from the United States in 2013 were deported as the result of minor criminal infractions, according to a New York Times analysis of deportation records. In California, it is estimated that 50,000 parents of U.S. citizen children were deported in two years.

Though the United States Supreme Court in 2010 ruled that defense counsel must advise noncitizens defendants about the immigration consequences of a conviction, California has had such a requirement since 1987 (People v. Soriano). When defense counsel fails to comply with the constitutionally required standards, that becomes a basis to challenge the underlying criminal conviction and eliminate the immigration consequences that would otherwise follow.

However, there is a bizarre and unique loophole in California’s criminal procedure law that prevents many immigrants from holding their defense counsel accountable for their failures. In California, you must currently be in criminal custody to raise a claim of ineffective assistance of counsel. Once you have successfully completed your sentence, you can no longer challenge your old conviction, even if you have evidence of actual innocence.

This failure of our criminal procedure law has a devastating impact on immigrants, who often times do not find out about their defense counsel’s failures until ICE initiates removal proceedings against them, often many years after the termination of criminal custody. Forty-four states and the entire federal court system provide individuals like Sann, who are no longer in criminal custody, with a way to challenge the legal validity of an old conviction. California is one of only six states that does not.

AB 813, authored by Assemblymember Lorena Gonzalez, and co-sponsored by the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, the American Civil Liberties Union, California Attorneys for Criminal Justice, and the Immigrant Legal Resource Center, will change this and bring California in line with the rest of the country. AB 813 provides that immigrants who suffered from ineffective assistance of counsel, and people who have claims of actual innocence, may challenge their convictions even after criminal custody has expired.

Senior Soros Justice Fellow, Rose Cahn, will be speaking about this bill this Tuesday, April 21, 2015 before the Public Safety Committee in Sacramento. If it passes the Public Safety Committee, it will be then sent for a vote on the floor of the Assembly.

Today, Sann is back home with his family only because the government has not yet been able to obtain travel documents from Cambodia for his return. Sann is living in limbo. He could be deported at any time. When this happens, Sann fears his children will suffer most.

“What would happen to his children if both parents were gone?” said Paul, Sann’s brother. “If all you have is a broken family, is that a family or just the remnants of one?”

* Names have been changed to protect privacy.