A California Law Is Helping Immigrants Wipe Slates Clean
“If you plead guilty, you will get out of jail very fast. I guarantee.”
Stephanie Flores, Eddy Zheng and a woman named Lucero all heard this exact phrase from their respective public defenders following arrests for different crimes committed in California. Confused, scared and without the ability to pay a private lawyer, they entered the criminal justice system with an additional handicap: Because they were undocumented immigrants or were in the process of gaining lawful permanent status, their criminal convictions put them on the Immigration and Customs Enforcement (ICE) priority deportation list.
“We have the burden of being undocumented, not being able to afford bails and knowing little about how to clean our records,” says 30-year-old Stephanie Flores. She arrived from Puebla, Mexico when she was a year old, together with her mother and four siblings. Flores’ sweet voice speaks volumes behind a seven-month pregnant belly. As a community activist, she recently learned how to become a ‘lobbyist,’ driving every week from her San Jose home to Sacramento to call on legislators to enact bail-bond reform. Although the measure was defeated, Flores continues campaigning in Santa Clara County to end its money bail system.
Flores is a Deferred Action for Childhood Arrivals (DACA) recipient, a benefit that protects from deportation about 1.2 million young undocumented immigrants who entered the United States as children. She could graduate as a communication specialist at San Francisco State University. She was, however, accused of first-degree robbery and assault and battery, after a January altercation with a waitress at a Santa Clara restaurant. According to court records, the waitress accused Flores of beating her and stealing money from the register.
Flores spent a month imprisoned at the Elmwood Correctional Facility Jail in Milpitas, alongside 50 other women, mostly Latinas and African Americans. “We didn’t have enough beds or potable water available; drugs fly free inside prison and we were treated like animals,” she recalls. Her bail was set at $100,000 – a sum normally suggested for kidnapping and voluntary manslaughter cases.
While in jail, Flores lost her apartment for nonpayment of rent and her car was impounded.
“I was afraid that my baby was going to be born in jail and that if I were sentenced for any crime, I could be deported,” she says. After six months of preliminary hearings, Stephanie was charged with petty theft, which is now considered a misdemeanor under Proposition 47, a 2014 measure approved by California voters. Prop. 47 reclassified certain nonviolent felonies as misdemeanors, including simple drug possession, petty theft and shoplifting. It works retroactively, so individuals can apply to have their sentences reduced or their records changed, regardless of when their convictions happened.
A felony conviction can bar immigrants from applying for a permanent lawful status and increases the risk of deportation.
Every year, according to Hillary Blout, a staff attorney with the Oakland-based nonprofit Californians for Safety and Justice, 3,300 fewer people are incarcerated due to Prop. 47, and more than a million have benefited from having their criminal records changed. There are not specific numbers on immigrants benefiting from the measure.
California has one of the largest prison populations in the country, and Latino and African American males together make up three of every four men in prison, according to the Public Policy Institute of California. Each person sent to prison costs the state $70,000 a year and, since 1980, California has built 22 prisons against only one new university. The cost of operating the state prison system in California is $10.5 billion annually, while, explains Blout, 49 of the state’s 58 counties have no public residential drug treatment programs.
People with criminal convictions face almost 5,000 restrictions: Although in California former felons can re-register to vote, they lose the right to public assistance, housing, education, jobs — and even parental rights are terminated. For immigrants, a felony conviction can bar them from applying for a permanent lawful status and increases the risk of deportation.
On the other hand, “reducing a felony to a misdemeanor can remove undocumented immigrants from an ICE “enforcement priority” list, explains Rose Cahn, the Criminal and Immigrant Justice Attorney at San Francisco’s Immigrant Legal Resource Center (ILRC).
When Eddy Zheng walked out of San Quentin after 19 years inside, ICE detained him for deportation.
“Although every undocumented person could be targeted for removal, she or he could [theoretically] apply for lawful immigration status – i.e., through U.S. citizen family members,” Cahn says. “But, certain criminal convictions can foreclose this path. There is a permanent failure in the justice system to warn immigrants about the consequences of plea bargaining.”
Lucero, 38, who did not wish to give her last name, was born in Michoacán, Mexico and grew up in a small village facing constant shortages of water and electricity. At 16, she crossed the U.S. border.
“I was very young and didn’t have any idea what ‘illegal’ meant,” she recalls today in her San Jose home. “People don’t know how powerful and devastating that word. is.” Lucero barely finished second grade in Mexico because she started working at an early age. She was taught, paradoxically, that school was for lazy people. “Enrolling in high school in California was a big shock for me… I left the classes and started to work in a kitchen-products company from 1995 to 2014, when I was arrested.”
Lucero suffered from alcoholism, which became a source of violent encounters with her former partner, who filed a restraining order and accused her of a cellphone robbery. “I spent just three days in jail but it was the most humiliating experience,” she adds. “I couldn’t make a call and my 17-year-old son kept waiting for me at his school. The next time he saw me I was wearing an orange suit and handcuffs in court.”
Lucero had to attend anger management classes, was ordered 30 hours of community service and to report herself every Monday to a probation officer over the course of a year. She didn’t know this situation put her closer to deportation, although she has been in a successful rehab program. “I lost my home and spent three months in a profound depression,” she says. “I have applied for jobs but didn’t get those due to my criminal record. Now I am working with a lawyer to expunge it.”
Flores and Lucero are receiving help through the Participatory Defense System, a model for communities to impact the outcome of court cases, by partnering with, or pushing public defenders, “to shine a light on felons’ humanity and potential,” according to the group’s website. Implemented six years ago in San Jose by Silicon Valley De-Bug, the model teaches families and community members how to gather pictures, family trees, school and medical records, and how to dissect police reports and court transcripts. “The idea is to build a sustained community presence in the courtroom to let judges and prosecutors know the person facing charges is not alone,” says De-Bug co-founder Raj Jayadev.
For undocumented immigrants, this system has proved more successful than free legal clinics and Live Scan events — where people get fingerprinted — which are more tailored for connecting former prisoners who are citizens with various resources. Immigrants are often afraid of showing up in public places and being detained by ICE, given the current increase in raids for deportation purposes, since the beginning of Donald Trump’s administration. “We use more word of mouth than big advertisement,” says Cahn from ILRC. “Through counties like Santa Clara or organizations like Silicon Valley De-Bug, we host clearing-record opportunities where immigrants can request a copy of their rap sheets and have legal assistance”
Although Flores and Lucero are cleaning their records through Prop. 47, the attorney notes that this is only one instrument in the toolbox of remedies known as post-conviction relief. Immigrants can go back into criminal court and alter their convictions through reduction, vacation (challenging a conviction’s legality) or expungement (removing the offense). Clean Slate programs at public defenders’ offices also help people to clean up their criminal records.
“We’re training legal service providers in how to implement these laws because even one day of a sentence reduction can make a difference between being deported or not, or having access to other benefits like DACA, asylum or U visas [for victims of crimes],” says Cahn.
Data from the Department of Homeland Security show that from 2006 to 2015, the number of people deported as a result of criminal convictions has increased gradually, hitting a record of more than 200,000 removals in 2012. In 2016, 58 percent of all ICE removals, almost 140,000 people, were convicted criminals.
The contrast in immigration politics between California’s and the federal government’s is stark. United States Attorney General Jeff Sessions instructed federal prosecutors to throw the highest possible charges at those who commit minor crimes, while doubling penalties in mandatory minimum sentencing laws that judges can not reduce, even with mitigating circumstances.
“The system has a strong impact on Latino families” notes George Galvis, 43, executive director of Communities United for Restorative Youth Justice. “If someone has a DUI conviction or a drug possession, that may complicate their immigration case. I’ve seen families torn apart for minor offenses.”
Galvis himself was incarcerated at age 17, charged with multiple felonies for his involvement in a drive-by shooting. Born and raised in the Bay Area but from a Peruvian family, Galvis witnessed how his father tried to kill his mother, and says he was bullied at school for being a student of color.
“Teens who lived like me understand the concept that hurting people hurts more people; while healing people heals more people,” says Galvis, who focuses his advocacy work on at-risk youth, prisoners and formerly imprisoned individuals with children. “We need to stop the cycle of sending young people to prison, especially minorities of color, without offering them something different than punitive discipline.”
Eddy Zheng was charged as an adult for participating, as a minor, in a 1986 home-invasion robbery and kidnapping. At the age of 16, four years after immigrating with his parents and two siblings from Guangzhou Province in southern China to Oakland’s Chinatown, he was convicted and sent to San Quentin State Prison.
“In jail I taught myself English through reading novels, and helped other young prisoners with counseling,” he says in Oakland, where he works with the Asian Prisoner Support Committee, helping youth at risk. He spent a total of 19 years in prison, until his 2005 release. When he walked out of San Quentin, ICE detained him and put him under a deportation procedure.
“I spent 23 months in Yuba County Jail and when released I had to wear an ankle monitor for a month, and check in with a probation officer three times a week.”After another eight years of immigration hearings, letters from prominent members of the community praising his rehabilitation and contributions to society, appeals, habeas corpus motions and a pardon petition to then-Governor Arnold Schwarzenegger that was denied, Governor Jerry Brown finally granted Zheng a full pardon in 2015.
“Many undocumented people qualify for post-conviction relief and they are fearful to come forward, afraid that their names show up in an ICE database if they look for legal assistance,” says Zheng, for whom the big challenge with the system is fighting misinformation. “We are here to show them solidarity and to change the narrative of the formerly incarcerated. They too have rights.”
Capital and Main