Coburn Dukehart/Wisconsin Watch
Lisa
Kum is seen in a park near Madison, with her daughter Emma, 2. In 2014,
Kum's husband Sothy Kum allowed an acquaintance to pay him to send
marijuana to his house. He was convicted of possession of marijuana with
the intent to deliver and served a year in prison. He was later
detained by Immigration and Customs Enforcement and deported in April
2018. Sothy Kum is a Cambodian refugee who left the country as a child.
He is among thousands of immigrants deported each year for
marijuana-related charges. Photo taken April 23, 2019.
In late December 2017, Lisa Kum received a call from her husband, Sothy.
Sothy told Lisa to pick him up in Chicago because he was about to be
released after three months of detention by immigration authorities on a
marijuana-related charge. On the drive from Wisconsin with their
daughter Emma, she received another call: Sothy said there was a
mistake, and Immigration and Customs Enforcement was not going to
release him.
Instead, the agency deported him back to Cambodia. Sothy, who had
lived in Wisconsin for most of his life, would not be able to come back
to his home in Sun Prairie — ever.
"I thought I was going to get him to bring him home, only to be told
'Sorry I will never come home,'" Lisa Kum recalled. "That was a hard
drive to come back."
Immigrants like Sothy Kum face severe consequences for marijuana
convictions, even in states where it is legal for medical or
recreational use. In Wisconsin, it is illegal for all uses.
Even though Gov. Tony Evers has proposed decriminalizing possession
of small amounts of marijuana, that would be little protection for
noncitizens, experts say. Cannabis remains illegal on the federal level —
and any use or possession could result in immigration problems.
From 2003 to August 2018, more than 45,000 people were deported nationwide for possession of marijuana, according to the Transactional Records Access Clearinghouse at Syracuse University.
Under
federal law,
any marijuana-related criminal conviction, except for a single
conviction for possessing 30 grams or less of marijuana, can make even a
legal resident deportable.
Despite the wave of marijuana legalization and decriminalization
across the United States, Davorin Odrcic, a Milwaukee-based immigration
attorney, tells his clients to abstain.
"What I generally recommend ... is someone to avoid even a citation for marijuana possession," Odrcic said.
Package leads to arrest — then worse
On Feb. 6, 2014, a postal inspector followed a package containing
marijuana to the Kums' home, at the time in Cottage Grove. Sothy Kum
acknowledged that he agreed to pass along several packages of marijuana
as a way to make money at a time when the couple had just launched its
small business refurbishing printer parts. He was charged with
possession of marijuana with intent to deliver and sentenced to three
years of probation and community service.
Nearly two years later, on Dec. 18, 2015, police officers found
marijuana at the couple's company.
The Kums claimed the marijuana
belonged to others who had left it at the business. But the incident was
deemed a violation of Sothy's probation, and he was ordered to spend a
year in prison.
Two weeks after Sothy was locked up, Lisa found out she was pregnant.
She gave birth to their daughter in August 2016. Sothy was still
incarcerated.
"That was a really, really hard time, him gone, I was super sick, I
was trying to do the business on my own for the first time," Lisa said.
Sothy was released in December 2016, but that was not the end to his
troubles. ICE took him straight from the Racine Correctional
Institution, transferred him to the
Kenosha County Detention Center and ordered him to be deported.
As ICE awaited travel documents from Cambodia, it held Sothy for more
than seven months. He was released and returned home in August 2017 —
two weeks before Emma's first birthday. The two got married at their
daughter's birthday party.
Emma,
Sothy and Lisa Kum are pictured at Devil's Lake State Park near
Baraboo, Wis., while celebrating Emma's first birthday in August 2017.
The family lived in Wisconsin when Sothy was deported to Cambodia in
April 2018 after being charged with possession of marijuana with intent
to deliver. He had not lived in Cambodia since he was 2, having come to
the United States as a refugee.
Then came Oct. 6, 2017.
"I have a hard time talking about this day, I try not to get
emotional when I talk about it, but it was the last day he was ever
home," Lisa said. "That was Friday morning … we were ready for work, and
there was a knock on the door … I saw the black SUVs out there and I
knew it."
ICE took him away again. On April 2, 2018, Sothy was deported to
Cambodia — a country he had left at age 2 before arriving in the U.S. as
a refugee in 1981.
Even minor marijuana offenses are serious
Even immigrants who do not commit a crime can face problems. Any "
violation of law,"
which Davorin Odrcic described as a gray area, could cause someone to
be ineligible to remain in the U.S. or to be denied entry to the
country.
An immigrant who acknowledges using marijuana — even if it was in a
state where it is legal — can face denial of an application for a visa
to visit or a green card to become a legal permanent resident, according to the San Francisco-based Immigrant Legal Resource Center,
which educates and advocates for immigrants' rights. Such an admission
also can block a legal immigrant's ability to return to the U.S. — or
even become a citizen.
Davorin
Odrcic is an immigration attorney from Milwaukee. He advises immigrants
to avoid marijuana because of the potential to harm their immigration
status.
Courtesy of Davorin Odrcic
Odrcic recalled a client detained for months due to a misdemeanor
marijuana conviction, which he said is ironic, since these types of
minor crimes rarely carry any jail time in the U.S.
The Milwaukee lawyer said he had clients who were legal permanent
residents who were convicted of marijuana possession of less than 30
grams. When the clients came back to the U.S. from abroad, they were
placed into immigration court.
"So all of a sudden, the permanent resident can be placed into
removal proceedings in the immigration court … just [for] leaving the
country," Odrcic said. "Even if it's a misdemeanor, it can carry really
severe immigration consequences."
Expungement no benefit for noncitizens
Tony Evers has proposed allowing expungement of records of
convictions for possession of small amounts of marijuana. Rep. Melissa
Sargent, D-Madison, also included expungement in her marijuana bill introduced in May 2019.
However, hiding a marijuana conviction from public view would not be of
much benefit to the noncitizen from an immigration standpoint, experts
say.
Under the current federal law, even if a noncitizen's record of drug
offense has been expunged, he or she is still considered as having been
convicted of a crime that could result in removal from the country.
Coburn Dukehart/Wisconsin Watch
Lisa
Kum puts her daughter, Emma, 2, into her carseat after playing in a
park near Madison. Kum's husband Sothy Kum, a refugee from Cambodia, was
deported in 2018 for a marijuana-related conviction. Immigration
attorneys warn that immigrants should avoid using marijuana or investing
in marijuana-related businesses — even in states where it is legal —
because it remains illegal on the federal level. Photo taken April 23,
2019.
Erin Barbato, director of the Immigrant Justice Clinic at the University of Wisconsin Law School, agreed. She said when it comes to immigration, expungement "doesn't help at all."
Davorin Odrcic said one way to eliminate the negative impact is to
vacate marijuana convictions on legal or constitutional grounds.
However, a conviction vacated based on an offender’s completion of a
rehabilitation program, for example, is not enough for immigration
purposes, he said.
Zachary Nightingale, an immigration attorney from California, which
has legalized marijuana for medicinal and recreational use, favors
mechanisms tailored to noncitizens that would allow them to not merely
shield but completely wipe past minor marijuana law violations from
their records. Some jurisdictions, including Seattle and New York, are currently looking into such programs.
The San Francisco attorney also believes state governments should do a
better job of educating immigrants to be aware of the prohibition in
federal law, regardless of marijuana's legal status in the state.
Federal, state laws conflict
U.S. citizens can use cannabis in states where it is legal. But for noncitizens, the federal restriction comes into play.
"I don't think it's fair, but that's what I would have to tell my
clients in the situation because there are immigration consequences for
the use of marijuana, even if the state that you live in is legal
medically or recreationally," Erin Barbato said.
The Immigrant Legal Resource Center has issued similar warnings.
The Center advised
people who have not obtained citizenship not to carry a medical
marijuana card and to remove any marijuana-related social media posts.
In April, two Denver residents were denied citizenship because of their
work in Colorado’s legal cannabis industry. Denver Mayor Michael Hancock
called the targeting of these immigrants by the federal government "horrible" and unveiled plans to inform immigrants about the risk.
Zachary Nightingale recalled one of his clients from California with
an investment visa who invested in a marijuana business. When he went
back to Germany to renew his visa, he discovered that because marijuana
is illegal on a federal level, his visa was denied.
"He really thought he was following the rule," Nightingale said. "He
submitted all the tax papers showing he paid marijuana tax and all the
paperwork … [of the] marijuana operation, which was illegal under
federal law, even though he had all the right paperwork under California
law."
Courtesy of Zachary Nightingale
Zachary
Nightingale is an immigration attorney in San Francisco. Nightingale
warns that immigrants involved in legal marijuana businesses can suffer
negative consequences because marijuana remains illegal on the federal
level.
At the border, a noncitizen's admission to ever using marijuana could
become grounds for denying admission to the U.S. In some states such as
Washington, where marijuana is legal, federal immigration authorities
working at border crossings have been known to interrogate noncitizens
about cannabis, according to the Immigrant Legal Resource Center
advisory.
What is even more confusing is that at the border between Washington
State and Canada, where both sides have legalized cannabis, Canadians
involved in the marijuana industry cannot cross the border for any
purpose involving their businesses, Nightingale said.
"I can't cross the border to do something legal on both sides of the border,” he said, adding, "That doesn't make any sense."
Different approaches to enforcement
Contact with police is one of the primary ways people can end up in
removal proceedings, Erin Barbato said. In the states where police do
not arrest or prosecute people for possessing small amounts of
marijuana, that could alleviate some of the consequences of cannabis use
for noncitizens.
But in a state like Wisconsin, where marijuana is still illegal, that
could result in a marijuana possession conviction, leading to further
immigration consequences.
"In Wisconsin, if you're pulled over and you have possession of
marijuana, you're likely to be placed in removal proceedings if you're a
noncitizen," Barbato said.
Erin
Barbato is the director of the Immigrant Justice Clinic at the
University of Wisconsin Law School. She teaches law students to
represent immigrants in removal proceedings. Here, she leads a group of
second-year law students at UW-Madison on Feb. 22, 2019. Barbato says
even if marijuana were legal in Wisconsin, the fact that it remains
illegal federally could mean negative consequences for immigrants who
use it.
Coburn Dukehart/Wisconsin Watch
While some sheriffs have declined to flag the immigration status of nonviolent offenders, others in Wisconsin actively cooperate with ICE. This includes sheriffs in Dodge, Waukesha and Kenosha counties.
According to the Transactional Records Access Clearinghouse, from
2015 to 2018, ICE arrested 49 people for marijuana sales or possession
directly from state prisons and county jails around Wisconsin. In that
same time, ICE made 26 arrests outside of jails or prisons of immigrants
caught selling or possessing marijuana.
Barbato said state lawmakers have limited ability to reduce the immigration consequences triggered by marijuana offenses.
"The federal government would have to legalize marijuana for it not to have a negative effect on the noncitizens," she said.
Her advice: "Right now, if you're a noncitizen, do not mess with marijuana. Stay away from it until it becomes legal federally."
'Total meltdown' on leaving U.S.
Sothy Kum now lives in Phnom Penh, Cambodia, a country he left as a
toddler. Lisa Kum said her husband knew nobody there when he first
arrived. After almost a year adjusting to life in Cambodia, in early
March, he started a new job teaching 4th and 6th graders, she said.
Most of Sothy's family, including his father, sister, three brothers and an adult son, are still in the U.S.
Sothy,
Lisa and Emma are seen in Cambodia in August 2018. The family lived in
Wisconsin when Sothy was deported to Cambodia in April 2018 after being
charged with possession of marijuana with intent to deliver. Sothy Kum
had spent most of his life in the United States.
After Lisa and Emma returned from a visit to Cambodia this spring,
Lisa said the 2-year-old started missing her dad and occasionally woke
up at night asking for him. In late July, Lisa sold the family business,
packed four suitcases and moved to Cambodia to join Sothy.
Sothy,
Emma and Lisa Kum are seen in Phnom Penh, Cambodia, on August 1, 2019.
The family lived in Wisconsin when Sothy was deported to Cambodia in
April 2018 after being charged with possession of marijuana with intent
to deliver. In late July 2019, Lisa and Emma moved to Cambodia to join
him permanently.
Lisa said she had a "total meltdown" as she watched one of her adult sons wave goodbye as her bus departed for Chicago.
"Knowing we will be back to visit in a couple of months helps, since I
know it won't be too long before I see them again," she said. "It makes
me think of how sad Sothy has been without his family and how lonely
and hopeless it must feel at times not knowing if he will ever see some
of them again."
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