Giving immigrants a second chance after incarceration

Legislation would allow some faced with deportation a chance to challenge their old convictions

After serving 12 years in prison for a robbery he committed as a 22-year-old, Charles Joseph was ready to be with his wife and three children.

Instead, Immigration and Customs Enforcement immediately took the Fiji native into custody in May 2019. He was released from the Mesa Verde immigration detention center in Bakersfield nearly a year later due to his being at high risk for coronavirus, but faces deportation at any given moment.

“It’s like I was doubly punished after I did my time,” said Joseph, who lives in Sacramento but is represented by the San Francisco Public Defender’s office. “I don’t know when they can come and take me, I don’t know what’s going to happen. I live with that every day.”

If he had taken a plea deal instead of unsuccessfully fighting charges in a trial, Joseph would be able to seek post-conviction relief from deportation under 2016 state legislation. That right could be extended to people like Joseph under a bill to be introduced on Wednesday by Assemblymember David Chiu.

“I have heard and been involved in too many situations of community members who, after serving years in prison and having paid their debts to society, are suddenly transferred to ICE just as they’re about to be released,” said Chiu, who represents San Francisco. “We want to at least give these folks a chance. These stories are heartbreaking.”

Assembly Bill 1259 would also allow noncitizens to challenge old convictions by jury trial when the defendant was unaware that the consequences could later lead to detention and deportation. They would then face the original charges again, with credit for time served applied, armed with the pertinent information.

The bill was brought to Chiu by co-sponsors Immigrant Legal Resource Center, the American Civil Liberties Union of California, and California Attorneys for Criminal Justice. It builds off Assembly Bill 813, passed in 2016 to create a process for post-conviction relief for those unaware of the immigration consequences that entering a guilty plea would bring down the line.

“It’s just been so unbelievably crucial in providing individuals with an opportunity to challenge old, illegal convictions,” said Rose Cahn, senior staff attorney at ILRC. “Yet there was a small subsection of individuals who simply were not given that chance and those were people with jury trial convictions. The idea that any person is being deported from the U.S. on an illegal conviction should shock all of our consciousness.”

Bill proponents are not able to determine how many people AB 1259 would apply to, but estimate it to be hundreds, if not thousands. Carla Gomez, a San Francisco deputy public defender in the immigration defense unit, said her office in 2020 vacated about 26 convictions under AB 813, nine of which were outside of San Francisco, and came across three jury trial cases that could not be vacated under state law.

Eddy Zheng, a Chinese-born longtime Oakland resident, has a similar case to Joseph in that he served time for a robbery conviction and was detained by ICE for an extended period upon release in 2005. His was a rare case, however, in that he was able to obtain a pardon from then-Gov. Jerry Brown and successfully lobbied the San Francisco District Attorney to drop deportable charges due to great community support before AB 813.

Zheng is now the founder and president of the New Breath Foundation, a group that works to obtain and deliver grants for Asian American and Pacific Islander families affected by mass incarceration, deportation and violence.

“It’s important to remove those types of barriers to… this type of relief,” Zheng said. “This would allow families in California to have the opportunity, for one, not to be fearful for their families being separated from immigration consequences. It should’ve been done a long time ago.”

Joseph finds himself in the same boat of having to conjure intense community support to convince one person in power — this time Gov. Gavin Newsom — to grant a pardon. The San Francisco Board of Supervisors passed a unanimous resolution in September supporting the pardon, which was requested in 2019, and other Northern California officials have done the same. But the fact that his fate rests in the hands of a single person embroiled in politics, including a recall effort, adds to the uncertainty of restoring his legal permanent residence status.

If the attempt to win a pardon fails, his children would experience the same thing Joseph did as a 15-year-old, when his father was deported to Fiji. He has not seen him since then.

“That’s really what I’m fighting for, I’m fighting for my kids,” Joseph said. “I know what it’s like to be permanently separated from my parents. It created a lot of anger and frustration. I went from a 4.0 student to just spiraling out of control.”

Joseph now does work for the Interfaith Movement for Human Integrity and teaches music, a lifelong love of his. Whether he gets to pursue those passions and remain with his children remains to be seen.

“This would provide a much more straightforward process that doesn’t require the very intense community organizing that has to happen now to address people who are from our community,” Chiu said of AB 1259. “We know them, we trust them, they have atoned for their past crimes. This bill is really about keeping California families whole by preventing deportation and detention based on faulty convictions.”

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