“There Are Loopholes You Can Exploit”

“Going back to the middle of the 1980s, Congress has fairly consistently enacted a series of laws that have expanded the number and type of crimes that can result in forced removal from the United States for anyone who is not a US citizen,” said César García Hernández, an expert on immigration and criminal law, adding that those impacted included both lawful permanent residents and undocumented immigrants.

Immigration laws that targeted “criminal aliens,” as the US government has put it, were not only indicative of the “tough-on-crime” mindset dominating US politics at the time, García Hernández told us. In many cases, he said, the same sets of laws produced mass incarceration and led to a vastly expanded immigration and deportation system.

“These are the same laws that expanded the death penalty for federal crimes, that gave us the one-hundred-to-one crack cocaine sentencing disparity that affected generations of primarily young black men,” García Hernández said.

In California, those laws continue to affect an untold number of families ― especially families of color. Home to 25 percent of the nation’s immigrants ― and more noncitizens than the populations of at least twenty-seven US states ― the state is also the progenitor of some of the nation’s harshest crime laws.

Angela Chan, policy director and senior staff attorney at Asian Americans Advancing Justice – Asian Law Caucus, says most of her organization’s immigration clients have experienced ICE transfers. Many are resettled refugees from Southeast Asia who came to the United States as children.

Asian Law Caucus has been fighting to end law enforcement collaboration with ICE for years as part of the “ICE Out of California” coalition ― but such efforts were often stymied by the lingering pressures of the tough-on-crime era. The Trust Act, passed in 2013, limited local and state law enforcement’s ability to hold immigrants for ICE, but exempted people convicted of certain crimes.

Finally, in 2016, a more comprehensive solution seemed imminent.

That year, just after Donald Trump’s election, lawmakers and advocates brought the California Values Act, colloquially known as California’s “sanctuary state” law, before the state legislature. Originally, that bill also protected all immigrants from information sharing between police and immigration enforcement. Then the lobby arms of law enforcement and the California Department of Corrections and Rehabilitation (CDCR) got involved.

In a legislature with an ironclad Democratic supermajority, police unions train their eye on the people who matter: conservative Democrats. The California legislature has a lot of them.

“CDCR and the Sheriffs’ Association and the Police Chiefs Association got oppositional lobbying underway, and they were really pushing on moderate Democrats to poke holes in the bill,” said Chan. It worked: amendments left immigrants convicted of any of a long list of crimes vulnerable to transfers, and exempted the state prison system entirely from the ban on information sharing.

The ICE Out of California coalition continued to support the bill, but the decision to do so wasn’t easy.

“That was a very hard pill for the statewide coalition to swallow,” said Chan, in part owing to “the narrative it would contribute to about people in state prison.”

That fear seemed to be borne out by the way talking points shifted after the prison exemption was added to the legislation. The bill’s sponsor said that the amendments would not “erode the core mission” of the bill: “To protect hardworking families that have contributed greatly to our culture and the economy.”

After the Values Act passed, the legislation “created an opportunity for local law enforcement to create their own policies with immigration enforcement,” California assemblymember Wendy Carrillo told us.

Meeting notes obtained by Chan from a 2017 California Police Chiefs Association executive team meeting confirmed those concerns: “There are loopholes you can exploit. You can post release dates on your website so ICE can see them that way.”

A Heavy Lift

Since the Values Act became law in October 2017, state prisons and county jails have collectively handed over around three thousand immigrants to ICE custody each year, according to the Asian Law Caucus. Muñoz estimated that half of the people he met in ICE detention at the Golden State Annex had ended up there in the same way. Some were people he’d been incarcerated alongside at Solano.

“There’s detainees that have been in there for three years fighting their cases,” Muñoz told us. The tremendous effort involved in resisting deportation wears people down, he said, especially given that it means choosing to stay in detention post-prison. “ICE knows (most people) are going to give up really quick because they’ve been dying to be free. Nine out of ten are gonna sign off [on their removal orders].”

In February 2020, then-assemblymember Rob Bonta introduced the VISION Act to formally end collaboration between state and local law enforcement and immigration officials. Assemblymember Carrillo, who took over the bill after Bonta left to become state attorney general, admits its passage could prove to be a “heavy lift.”

Said Carrillo: “Issues related to immigration and criminal justice reform and prison tend to be topics that people stay away from.”

The VISION Act recently passed the Assembly forty-two to twenty-one, but sixteen members abstained, all but two of whom are Democrats. Abstaining from votes is a common practice that allows lawmakers to avoid taking a stand on contentious issues that might alienate campaign contributors or conservative constituents.

Still, the bill’s supporters are optimistic that law enforcement interests might be less antagonistic to the reform than they were in 2017.

A number of county sheriffs around the state have independently chosen to stop ICE transfers, including many who hold sway with their state lobbying association, Chan said. Though the California Sheriffs’ Association and the Police Chiefs Association still contest the bill and are lobbying against it, the latter’s “top legislative priorities”  this session appear to center on bills that represent a more direct threat to prisons and policing, such as bail or sentencing enhancement reform. (Some of those reforms have already been watered down, thanks to law enforcement lobbying.)

Many of the VISION Act’s supporters are vocal critics of the criminal legal system, but the bill itself does not question the legitimacy of sentences like Muñoz’s; it merely argues that he should not be treated differently from an American citizen in the same situation. In conversation with us, Assemblymember Carrillo emphasized that the VISION Act would provide relief to people who have “paid their debt to society.” Whether the very premise of that debt is valid is a question left to other legislation.

Choosing Who Gets to Be Free

If the VISION Act clears the California senate, it will end up on the desk of Governor Newsom ― which is no guarantee of anything. As governor, Newsom “can certainly order CDCR and the CDCR secretary to stop ICE transfers,” said Chan. He has not made this request, even after a number of legislators and advocates petitioned him to do so on public health grounds last summer.

Newsom has generally avoided speaking publicly about the transfers, other than to say in September 2020 that the practice is “past precedent . . . we maintain it as the appropriate course for our administration.”

This past May, Newsom pardoned two Laotian refugees who faced deportation after extensive news coverage detailed how the two had fought fires for a few dollars per workday while incarcerated. But, as Assemblymember Carrillo noted, Newsom declined to intervene in the case of Gabby Solano, who was recently deported to Mexico after spending over two decades in prison for a killing committed by her abusive partner under a punitive state “felony murder” law that has since been reformed.

Said Carrillo: “Should we have one policy in place, or are we going to just pick and choose who gets to return home?”

A Second Chance

In March 2021, after spending six months in ICE detention, Carlos Muñoz won his freedom in court before he could be deported. It’s a rare outcome for someone in his situation. Angela Chan called Muñoz’s case “the exception, not the rule,” adding that release after an ICE transfer generally only occurs in cases with an unusual degree of visibility and community pressure.

Muñoz knows this fact better than anyone. His two brothers, César and Victor, also spent time in prison in California; both of them were transferred to ICE and deported upon release, in 2008 and 2018. Because of their deportations and prior convictions, none of the three brothers can cross the US-Mexico border to reunite with one another.

“I can’t ever see them again unless I get a pardon, unless my conviction gets overturned,” Muñoz said. “But they can’t ever come back.”

Now, Muñoz lives in LA, navigating the myriad daily challenges of reentry alongside mourning the absence of his brothers. He told us that stories of people like him, who have been given a second chance, are “living proof that we could change. Who knows how many have been thrown away that could have been a contribution to this community?”