A New Way Forward: “It’s Time To End Immigrant Criminalization”
Unjust immigration laws have perpetuated a mass incarceration and detention crisis tearing apart our communities and harming the lives of thousands of Asian refugees and immigrants.
By Gisela Perez Kusakawa
In a historic moment for immigrant communities across the country, Representatives Jesús “Chuy” García (D-IL-04), Ayanna Pressley (D-MA-07), Pramila Jayapal (D-WA-7), and Karen Bass (D-CA-37) along with 30 other members of Congress including CAPAC Chair Judy Chu (D-CA-27) introduced the New Way Forward Act which would help end the criminalization of our communities by repealing the harsh 1996 immigration laws that led to the mass incarceration and deportations of immigrants nationwide. Over 145 organizations endorsed the New Way Forward Act, including our own Advancing Justice affiliation and SEARAC.
During the press conference, four directly impacted people, Saray Phin, Alejandra Cano, Ale Pablos, and Donald Anthonyson powerfully shared their experiences in the detention system and their fear of being permanently exiled from their families and loved ones. They have gone on to become powerful advocates and leaders in the movement for immigrant justice, and called for the need for the New Way Forward bill to stop the mass criminalization and incarceration of our communities.
Saray Phin came to the United States with her family as a two-year old refugee fleeing the Khmer Rouge regime in Cambodia. She was one of thousands of Cambodians who escaped from the ruthless Khmer Rouge genocide. Born in a refugee camp, Ms. Phin came to the United States for refuge and safety, but instead found herself a victim of domestic violence and trapped in the U.S. detention and deportation system. Her decades-old criminal conviction came from her abusive husband’s possession and intention to sell. She was able to successfully fight her case. Now, she is a powerful voice in her community advocating for second chances in the justice system through her work at the Seattle Clemency Project.
Cuong Nguyen is a Vietnamese refugee who came to the United States when he was just eleven years old with his family as political refugees. His father served in the South Vietnamese Army which fought together with the United States Armed Forces during the Vietnam War. Despite having already served a two-year sentence for a drug conviction, he was arrested and detained by ICE for another two years. Mr. Nguyen explained the impact detention had on him and his family.
“For the last two years, my loved ones have been in fear of my deportation,” and he continued, “After serving a 24-month prison sentence for my mistakes, a decade later I was suddenly separated from my family, missing my son’s first birthday and forcing my wife to be a single parent and manage our business alone without knowing when I would return.”
Ms. Phin and Mr. Nguyen are two of many who have been harmed by the escalation of immigration enforcement against Southeast Asians refugees for old criminal convictions. Laws already on the books have been weaponized by the Trump administration creating an environment of fear and traumatizing and disempowering Asian American communities, which is a predominantly immigrant population with two-thirds being foreign born. Tens of thousands live in fear of deportation, stuck in a paralyzing limbo that ripples out to their families and communities.
The immigration stories of many Asian Americans, such as Eli Oh, are often times overlooked. Mr. Oh, a critical-care response nurse, came to the United States at the age of 11. No one realized that Mr. Oh and his family were undocumented. There are large numbers of undocumented Asian nationals from countries such as India, China, and the Philippines.While immigration enforcement is not always viewed as an Asian American issue, the reality is that Asian Americans have a stake in changing immigration policies. Our community, particularly Southeast Asians, are deeply harmed and impacted by cruel immigration policies. Between FY2015 to FY2018, ICE arrested about 15,000 Asian immigrants. Arrests of immigrants from Vietnam, Laos, and Cambodia alone constituted nearly 3,000 arrests, about 20% of the total number of Asian immigrants arrested during that period. Of the 16,000 Southeast Asians with final removal orders, over 13,000 are based on old criminal records.
Southeast Asian immigrants are three to four times more likely to be deported for old criminal convictions compared to any other immigrant group.
The criminalization of Asian Americans and Asian immigrants is part of a larger criminal justice system and mass incarceration problem. As Representative Pressley stated, “It is time to recognize that our immigration and criminal injustice systems are deeply flawed and entangled…Our immigration system… is doing the very same thing [as mass incarceration], separating families and decimating entire communities.” Pressley continued, “[I]t is as unconscionable as it is proven to be profitable.” We must come together and recognize that this not just as an immigrant problem, but a problem for our criminal justice system and a problem for all communities in the United States. As Representative Pressley stated, “Justice denied to our immigrant neighbors is justice denied to all of us. ”
As the lead co-sponsor, Representative Chuy Garcia called for all of us to stand united for the families that have been separated due to harsh immigration policies by supporting The New Way Forward Act.
“At this moment in history, we are called to uphold our values, our compassion, our common humanity, and racial justice … We are simply asking … for the opportunity for immigrants to stay in the country they call home. A New Way Forward does just that.”
The New Way Forward Act is legislation that seeks to restore dignity to our communities. The immigration laws passed in 1996 created an unjust immigration enforcement legal system that targeted, profiled, and incarcerated communities of color and immigrants. The New Way Forward Act would end the problematic entanglement between local law enforcement and ICE. It would end the practice of local police collaborating with ICE and acting as deportation agents. This would address the ongoing issue of discriminatory policing practices and racial profiling that has led to the disproportionate arrests, convictions, and deportations of people of color. For example, despite representing only 7% of non-citizens, 20% of people in deportation proceedings on criminal grounds are black immigrants.
The mass incarceration of people of color and immigrants have filled the pockets of private prison companies that profit from separating families and imprisoning immigrants. The New Way Forward Act would reduce the mass incarceration of immigrants by ending mandatory detention and phasing out the use of private prisons and county jails for detention. It would require the government to establish probable cause within 48 hours of detention and ensure the right of a fair bond hearing for detained immigrants. It would create exceptions for vulnerable populations such as children, LGBTQ individuals, asylum seekers, and survivors of torture. Moreover, the New Way Forward Act would introduce a five-year statute of limitations that makes our immigration laws more consistent with other areas of law. Ultimately, the bill would return notions of fairness back into our immigration laws.
The bill would also amend the definitions of “conviction” and “sentence” to better align with criminal justice definitions, so that withdrawn guilty pleas, vacated convictions, or suspended sentences are not considered convictions and deportable offenses under immigration law. It would decriminalize migration by repealing illegal entry and reentry laws. The New Way Forward Act would allow deported individuals to apply for an opportunity to return home, and end the inhumane separation of families.
Many fearing detention, such as Mr. Nguyen, hope that this bill will allow them to stay with their families. “[T]he New Way Forward Act is important to me,” Mr. Nguyen explained, “By restoring judicial discretion to immigration judges, they can finally look at my case, see my family and my contributions to my community, and hopefully provide me and others in my position the relief we so desperately need.”
Every day that current harsh immigration policies stay in place is another day that rips families apart. Today, Alejandra Cano will be checking in with ICE where they could choose to detain her. She is in danger of being separated from her children and deported as a result of mistakes made in her teens. Ms. Cano and her family came to the United States when she was a toddler as political asylees fleeing the Pinochet dictatorship. At the age of fourteen, she suffered from drug addiction and committed misdemeanors, most of which were for shoplifting. Now, she works to help others fighting addiction and homelessness. Ms. Cano lives every day in fear, but she continues to fight and stand up not only for herself, but for other immigrants impacted by our unjust detention system. “Our country’s immigration laws leave no room for second chances,” Ms. Cano said at the bill introduction, “I am here today because those laws are not in line with the values this country and its people hold true.”
It’s time to uphold the values of this country for immigrants and people of color and provide relief for thousands of families. The New Way Forward Act would offer a strong step in this direction by ending the mass incarceration and criminalization of Asian refugees and immigrants. As CAPAC Chair Chu stated, “[T]his has to stop. Immigrants deserve redemption and a second chance.” We must support rehabilitation rather than push for punitive efforts. We must envision a future that prioritizes building up strong communities and supporting families.
Gisela Perez Kusakawa is the National Asian Pacific American Bar Association Law Foundation Community Law Fellow at Asian Americans Advancing Justice | AAJC.