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Incarcerated and Formerly Incarcerated Californians Sue State Prison System For Illegally Discriminating Against People Suspected of Being Born Outside the U.S.

April 27, 2023 News

Media Contact: media@advancingjustice-alc.org

Incarcerated and Formerly Incarcerated Californians Sue State Prison System For Illegally Discriminating Against People Suspected of Being Born Outside the U.S.

Racial Justice and Immigrant Rights Leaders Call on Governor Newsom to Halt CDCR’s Cooperation with ICE

SAN FRANCISCO — A lawsuit filed today in California Superior Court claims that the California Department of Corrections and Rehabilitation (CDCR) unlawfully discriminates against hundreds of people each year in its wholly voluntary efforts to assist Immigration and Customs Enforcement (ICE). CDCR refers people in its custody to ICE for detention and deportation after they have served their time in prison, contributing to a dual system of justice that targets immigrants, refugees, and anyone CDCR officers unilaterally—and often incorrectly —assume was born outside the U.S. In violation of Californians’ civil rights, CDCR at times makes these decisions using nothing more than their perception of an incarcerated person’s place of birth, race, ethnicity, or how well they speak English.

The lawsuit alleges that CDCR’s policy of referring people to ICE based on national origin has led to many U.S. residents and citizens being investigated, detained, and put into the deportation pipeline based on false and racialized assumptions of individuals’ immigration statuses, in violation of the California Constitution’s equal protection clause and state anti-discrimination law. It has also resulted in peoples’ exclusion from rehabilitative programs that enable them to reduce their time in custody; alternative-to-custody programs; lower-security housing placements; and educational and vocational programs that help people transition back to their families and communities, in violation of the California Values Act.

The lawsuit’s organizational plaintiffs, Asian Prisoner Support Committee and Root & Rebound, provide services to thousands of incarcerated and formerly incarcerated community members, including Californians harmed and denied their civil rights by CDCR and its discriminatory practices detailed in today’s filing.

“Throughout my incarceration, CDCR informed me I had an active ICE hold. Knowing that caused me so much fear and anxiety throughout the years, believing I would never be able to return home to my family,” said Ny Nourn, Co-Director of the Asian Prisoner Support Committee and an advocate for other immigrant community members and survivors of domestic violence. “Shortly after a visit from an ICE agent, in May of 2017, on what was supposed to be my first day of freedom after being granted parole, CDCR automatically transferred me to ICE detention, where I would spend the next six months fighting deportation. CDCR continues to work with ICE to discriminate against foreign-born people like me instead of helping keep our communities safe and families together.”

“Root & Rebound’s mission is to support people in navigating reentry and to reduce the harms perpetuated by mass incarceration,” said Carmen Garcia, Root & Rebound’s executive director. “CDCR’s unconstitutional practices of referring incarcerated individuals to ICE add yet another significant and discriminatory barrier for people and their families who are trying to break the cycle of incarceration.”

The lawsuit’s two individual plaintiffs were referred to ICE upon entering CDCR custody, jeopardizing their access to important housing and rehabilitation services, and causing serious harm to their wellbeing.

Plaintiff Roth Chan is a U.S.-born citizen whose family immigrated to the U.S. from Cambodia. When she entered CDCR custody, officials perceived her to be foreign-born (CDCR actually classified her as “Mexican” on prison paperwork), triggering an illegal, CDCR-invented policy known as a “Potential Hold,” which state officials use to send information about people to ICE and to deny them placement in various prison programs. She has repeatedly notified CDCR of her U.S. citizenship, but has been ignored.

Chan was devastated when she learned that the Potential Hold had blocked her access to alternative-to-custody programs, rehabilitation programs, and early release.

“It put me in a deep depression,” said Roth Chan. “I would attend programs all day in prison, and by the end of the day I would cry knowing that I wasn’t earning credits for an earlier release just based on my appearance. I still have a hard time sleeping. I wonder what will happen if ICE picks me up or transfers me to an immigration detention facility. I think about it every night.”

In 2020, CDCR illegally transferred Brian Bukle—a Black resident of Riverside County who has lived in the U.S. since he was a toddler and who has been a U.S. citizen for over 50 years—to ICE custody, after denying him access to an alternative-to-custody program. ICE illegally incarcerated him for 36 days. Like Chan, prison officials singled out Bukle based on their suspicions that he was foreign-born, triggering the Potential Hold and a related illegal policy known as the “ICE Notification Policy,” which CDCR used to refer Bukle to ICE for detention and possible deportation.

Under the ICE Notification policy, CDCR sends lists of all supposedly foreign-born people to ICE on a monthly or quarterly basis—people like plaintiff Anouthinh “Choy” Pangthong, a U.S. citizen born in a refugee camp in Thailand. When Pangthong entered CDCR custody in 1998, CDCR notified U.S. Immigration and Naturalization Services (the predecessor agency to ICE), even though Pangthong had become a U.S. citizen the previous year. Pangthong lived with the threat of ICE detention and deportation for nearly 19 years, until an attorney was finally able to convince ICE to release the hold and Pangthong could return home.

“For nearly two decades, I lived with the fear and trauma caused by CDCR’s discriminatory ICE notification policy based on where I was born. I tried for 19 years to explain that I’m a U.S. citizen,” said Anouthinh “Choy” Pangthong, who works with Southeast Asian communities as the digital media director for the organization Empowering Marginalized Asian Communities in Stockton. “At one period during my incarceration, it got to the point that I almost hoped to stay in CDCR custody to just avoid being ripped apart from my home and family. Deportation would mean losing my loved ones and a life rooted in the community and state I call home. Like any other Californian, immigrants and refugees should be able to earn their release from prison and reunite with their families and communities.”

This lawsuit exposes CDCR’s unconstitutional, racist, and wholly voluntary policies and practices that tear families apart in California every day, coming just as the HOME Act has been introduced in the state legislature to ensure immigrant Californians who earn release from state prison under broadly supported criminal justice reforms are not transferred to ICE. As the legislature works towards passing the HOME Act and this lawsuit advances, plaintiffs and their attorneys are calling on Governor Newsom to protect Californians and halt CDCR’s voluntary cooperation with ICE today.

“A few weeks ago outside San Quentin State Prison, Governor Newsom said, ‘we have to be in the homecoming business.’ For an untold number of Californians, homecoming remains a mirage as long as CDCR opts to keep its unconstitutional, illegal, and racist policies,” said Carl Takei, Criminal Justice Reform Program Manager at the Asian Law Caucus. “Across the state, incarcerated and formerly incarcerated Californians and their families are sharing their stories to bring about change that reunites loved ones and builds stronger communities. With a stroke of a pen, Governor Newsom can embrace their calls to action and fulfill his own promise to make California a state that welcomes people home.”

“Through its unlawful discrimination and targeting of immigrants and refugees, the California prison system is undermining Californian values of equality, fairness, and justice. This contradicts the alleged mission of the California prison system to provide people with the tools to return to their communities, through access to rehabilitative and educational programs,” said Sana Singh, Immigrants’ Rights Fellow at the ACLU Foundation of Northern California. “This lawsuit underscores what incarcerated and formerly incarcerated people have shared about their experiences for years: California operates a system of double punishment that rips apart immigrant and refugee families and communities.”

Plaintiffs are Roth Chan, Anouthinh “Choy” Pangthong, the Asian Prisoner Support Committee, and Root & Rebound. They are represented by the ACLU Foundation of Northern California, Asians Americans Advancing Justice – Asian Law Caucus, and Munger, Tolles & Olson LLP.