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After former President Donald Trump took office in 2017, a surge of deportations of immigrants and refugees from Southeast Asia left the community scared and confused. When legislators and nonprofit groups looked into the problem, they found that these deportations were triggered by old convictions—some from as long as 15 years ago.
People suddenly were being thrown out of the United States, in part because of changes in U.S. foreign policy under Trump. Previously, several Southeast Asian countries were not accepting people being deported from the United States. The Trump administration negotiated a change, allowing for deportations.
So what exactly resurfaced these old convictions for such a distinct group of people? Trump-era foreign policy played a role. But in 2019, community leaders also found that a severe disconnect between the criminal justice system and the federal immigration system was causing severe consequences for the state’s immigrants.
“There are a number of people sort of stuck within that time period and we need to get them the chance to have a fair hearing,” said Representative Kaohly Her (DFL-St. Paul). “There were people who were within that system that had already served out their sentence, went back to school, and are productive members of society.”
In 2019, 14 legislators introduced the post-conviction relief bill which, if it passed, would have granted someone with a prior conviction who is also facing deportation the chance at redemption. But the bill ran into a legislative logjam that year because of the need to pass a state budget.
After facing delays resulting from a split state legislature and the pandemic, Her and three other legislators reintroduced the bill in the House in February and 12 more legislators have signed on. The bill is now included in the House’s judiciary omnibus bill, a collection of proposed law changes that will move on to the Senate for approval.
What is post-conviction relief?
The connection between immigration and post-conviction relief is quite complicated, but once it became clear to both Democrats and Republicans in the state legislature, ThaoMee Xiong said the bill has garnered bipartisan support. Xiong works for Saint Paul Mayor Melvin Carter as the director of intergovernmental affairs, but she is also a member of the Coalition of Asian American Leaders, one of the nonprofit groups pushing for the bill.
“It’s a privilege to be able to live in the U.S. That privilege could easily be taken away,” Xiong said. “If it is a privilege, but we create laws that don’t take into consideration how one thing triggers another, then it’s hard for individuals to make informed decisions.”
Those decisions came in the form of plea bargains. If an immigrant was convicted of a crime, they likely would have received counsel that encouraged them to take a plea bargain that would require them to serve some time in prison. If that person were a citizen, time served would be enough for them to come home, get a job, and reintegrate back into society. But for immigrants, taking a plea bargain put them at risk of deportation.
The catch is, pre-Trump, certain immigrants—Cambodian, Vietnamese, and Hmong in particular—were told by their attorneys that they didn’t need to worry about being deported because their home countries were not accepting deportations from the United States.
When Trump came into office, he made deals with these countries which opened them up for deportations. Realizing how easily these deportations were triggered, legislators, nonprofit groups, and researchers created the post-conviction relief bill to solidify protections for an ex-convict facing a removal order.
“People agreed to the criminal conviction and to the removal order, because they were told that they would never be deported,” Xiong said. “So they made decisions with incomplete information and incomplete legal guidance.”
According to Xiong, if an individual feels there is an underlying mistake in their criminal conviction—for example, the law was incorrect or they received inadequate counsel—they could bring the case back to court. But they have a two-year time limit after conviction to do so. Xiong said that most of the immigrants facing deportation to Southeast Asian countries in particular have convictions from 10 years ago; one person had a conviction 15 years ago. The post-conviction relief bill would remove the time limit.
“Minnesota actually has a really strict time limit,” Xiong said. She added that some states have a 10-year time limit, while others don’t have one at all. “These are policies and laws that get people stuck in the criminal justice system and never allow them to cycle out.”
A disconnect between the criminal justice and immigration systems
More than 1,000 people in Minnesota faced deportation from Vietnam, Cambodia, or Laos over the last 20 years according to a tracking site kept by Syracuse University. However, that data only reports when deportation proceedings started. So it’s not clear how many people had old, stagnant deportation cases that were triggered post-Trump.
What was clear to community leaders was that a lack of legal protection had disproportionately affected immigrants from Southeast Asian countries because of arbitrary foreign policy agreements. In 2017, more than 1,400 Cambodians with criminal convictions in the United States faced deportation.
That became a major point of concern for Xiong. In her role in the Saint Paul mayor’s office, Xiong was tasked with coming up with a legislative solution. She found that a bill was necessary to fix the legal mechanism that allowed so many people to be deported.
“The lack of understanding between these systems actually created more barriers and more challenges to accessing justice,” Xiong said. “I’ve been educating our legislators and saying, when you pass criminal reform laws, you also need to consider the immigration implications of these laws.”
Sarah Buchlaw coordinates the “Decriminalizing Communities” initiative with Jewish Community Action, a nonprofit advocacy group. Jewish Community Action is one of the organizations pushing to pass the post-conviction relief bill. According to Buchlaw, a just legal system can only exist if there are ways to correct mistakes made within the system.
“It is not simple. It’s not just a criminal justice bill, and it’s not just an immigration bill,” Buchlaw said. “It’s really unique for that reason, in that it occupies this very specific intersection of criminal justice reform, and immigrant justice.”
Buchlaw said Jewish Community Action has been educating its members and meeting with legislators to show how the two systems overlap. It has been hard to move the bill forward because that connection was never clear—until now, Buchlaw said.
A stalled bill garners support
Buchlaw added that Her’s passion for the bill has been contagious, and she’s confident the bill will be a priority in the current legislative session.
“In a split legislature, it’s been really challenging to get bills heard in the Senate,” Her said. Minnesota is the only state in the country with a split legislature. Republicans hold control of the Senate, while Democrats are a majority in the House.
Because the bill was first introduced in the House during a budget year in 2019, Xiong said it was difficult to prioritize post-conviction relief. By 2020, the bill was stalled because of the COVID-19 pandemic. The legislature hadn’t had any hearings until the current legislative session.
Now, with a 40-member coalition pushing for the bill and 15 members of the House signing on, Xiong said she’s confident the bill will pass. She’s also noticed some bipartisan support.
“There’s a growing number of Republicans who are really sympathetic to the issue,” Xiong said. “Having a second sentence of deportation seemed everything against what we stand for as Americans.”
Xiong pointed to increased awareness of the intersection between criminal justice and the federal immigration system: “It’s a huge victory in itself,” Xiong said. “Part of the problems that we’re trying to unravel now were triggered by the fact that these two huge government systems were not talking to each other.”
Now that Her, Xiong, and other leaders have gotten the two systems talking, structural change in criminal justice and immigration might be possible.