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In ICE’s Arsenal: Cannabis Convictions

For immigrants, including those who came to the US legally, even a misdemeanor can trigger the harshest possible consequences

This story was originally published on Cannabis Wire, an independent news organization covering the global cannabis industry.

Sothy Kum’s daughter, Emma, is twenty-nine months old. But Sothy has been able to spend only about two of those months living with her in their suburban Wisconsin home. For a majority of her life, he has been separated from her, mostly locked up — first in prison, then in and out of various Immigration and Customs Enforcement detention facilities after he was ordered deported. The next time Kum will be able to see his daughter, both of them will be halfway around the world.

At forty-four, Kum’s youthful energy contradicts his graying hair, which he shaves bald. He stands just shy of six-feet tall and exudes a take-life-as-it-comes positivity that accentuates his Midwestern affability. He was close to his daughter’s current age when he left Cambodia. It was the mid-1970s, and, after eight years of carpet bombing by the United States and five years of civil war, the Khmer Rouge had come to power under the ruthless leadership of Pol Pot. Between 1974 and 1979, the Khmer Rouge killed anyone it perceived to be in opposition to its program of serfdom-style communism — between one-and-a-half and three million people, around a quarter of Cambodia’s population.

Hundreds of thousands fled, including young Kum, his parents, two of his older brothers, and his younger sister. They spent about two years in a refugee camp in Thailand, then a couple more in a camp in the Philippines. Eventually, the family was selected for refugee resettlement to the US, and in September 1981, they arrived in Wisconsin.

There Kum became a US legal permanent resident. He graduated from high school and earned a degree in social work from the University of Wisconsin-Whitewater. He married, had a son, and divorced. In 2009, he met Lisa Ebert while they were both working at her family’s business — a computer and printer-parts company in Madison. They began dating, moved in together, and, in late 2013, they started their own company refurbishing and selling printer parts.

The business took off and provided Kum and Lisa with enough income to support themselves and three employees. But the first few months were tough, and they needed extra money to get the company off the ground. Shortly after the business opened, an acquaintance of Kum’s offered him what looked like a temporary solution to their financial straits — a gig receiving packages of cannabis through the US Postal Service and delivering them to their intended recipients, which he accepted to help pay the bills.

In February 2014, the police followed one of the packages to Kum and Lisa’s home. Kum was charged with felony possession of more than eight pounds of marijuana with intent to deliver and sentenced to community service and three years’ probation. At this time, cannabis legalization for medical and recreational use was already spreading across the country, but Wisconsin hadn’t — and still hasn’t — passed laws to allow its sale for either use.

Almost two years later, police raided Kum and Lisa’s business, and again found marijuana. Although Kum and Lisa say that two of their employees claimed the cannabis as theirs, it put Kum in violation of his probation. Beginning in December 2015, he was to spend about two months in a county jail, then another ten in prison.

Lisa discovered that she was pregnant while Kum was still in county jail, and he missed the birth of their daughter, Emma, in August 2016. And in May, while Kum was incarcerated, Immigration and Customs Enforcement issued him a “Notice to Appear.” Citing his original cannabis conviction, the agency said it was revoking his green card and placing him in deportation proceedings. The following December, at the end of Kum’s sentence, ICE picked him up from prison and immediately transferred him to Kenosha County Detention Center in Wisconsin. He spent another eight months in immigration detention.

While Kum was in detention, ICE was unable to obtain travel documents for him from the Cambodian government, which has a history of refusing to take back its nationals whom the US wants to deport. So, in August 2017, the agency released him under orders of supervision.

A few weeks later, on the weekend of their daughter’s first birthday, Kum and Lisa hosted a cookout at Devil’s Lake State Park with family and friends to celebrate and welcome Kum home — and to finally get married.

Shortly after leaving detention, Kum had a check-in appointment with ICE. At the appointment, officials told him to check in again in a year, leading Kum and his family to think that he was safe, or at least that he had some time. But six weeks later, on the morning of October 6, 2017, three black SUVs pulled up to the Kum family’s home. Lisa answered the door while Kum dressed their daughter. When officers told her that they were from ICE, she felt like she was going to pass out. She closed the door, went up to the bedroom, and told Kum, who calmly handed his daughter to his wife, told them both he loved them, and then was gone.

Lisa Kum with Emma. Credit: Photo provided by Lisa Kum.

In a notarized letter attached to a petition to ICE to stop Kum’s deportation, Lisa described the heartbreak her family felt in the days following his most recent arrest. “Our daughter would call out ‘daddy’ and would get nothing in return,” she wrote.

“I never in a million years thought he could get deported for something so stupid,” Lisa said. “I mean, we obviously know it’s against the law, especially in Wisconsin. But to be deported and torn away from the rest of your family forever? It just doesn’t make sense.”

Kum’s story is not an anomaly. All but five states have legalized or decriminalized cannabis to some degree, but with federal prohibition still in effect, immigrants aren’t able to enjoy those relaxed restrictions. That includes immigrants like Sothy, with a felony conviction on his record, but also immigrants with only minor brushes with cannabis law.

The prohibition on cannabis provides an effective tool for the Trump administration’s deportation crusade. Although ICE said that the agency doesn’t keep enough data to pinpoint exactly how many non-citizens face deportation because of cannabis, statements from Trump administration officials and stories of ICE’s widespread crackdown make it clear: If you’re legally deportable because of marijuana, you are a target.

Inequity in cannabis enforcement is a well-documented phenomenon in the United States. The domestic war on drugs in the 1970s, ‘80s, and ‘90s — in which cannabis played a significant supporting role — helped perpetuate what scholar Michelle Alexander describes as America’s historical “racial caste system” of white supremacy, and, to this day, cannabis laws are applied more harshly in black communities than they are in white ones. Yet while the function of cannabis enforcement in the oppression of vulnerable US citizens is clear, less is known, or discussed, about prohibition’s effects on vulnerable immigrants.

Under the Immigration and Nationality Act, the law that dictates much of US immigration policy, would-be immigrants or visitors — everyone from refugees hoping to resettle in the US to tourists — can be rendered “inadmissible” and be shut out of the country if immigration officers have “reason to believe” that they have some sort of connection to marijuana. Counterintuitively, that federal policy has been enforced with increasing regularity as more US states pass laws legalizing recreational use. Ten states and Washington, DC, have legalized recreational cannabis so far, and more than thirty states plus DC have legalized medical use.

Len Saunders, an attorney with Blaine Immigration in Washington state, with offices about a dozen blocks from the Canadian border, says that he deals with marijuana-related admission cases once or twice a week. But it hasn’t always been that way; he said that, when he started working at Blaine around fifteen years ago, he only handled one or two cannabis-related cases per year. After Washington voters elected to legalize in 2014, he almost immediately started getting more calls from Canadians who came south for legal cannabis and then got themselves barred from the US by revealing their marijuana habits to border officials without understanding the consequences. Even though Canada’s nationwide recreational legalization initiative went into effect in October, US Customs and Border Protection has admitted that it will continue to stringently enforce this policy, leading to concerns that large swaths of the Canadian population will have trouble entering the US.

Unlike foreigners being screened for admission, immigrants already living in the US legally are afforded some semblance of due process before facing harsh consequences for associating with cannabis. For legal residents, including refugees or other green card holders, any cannabis-related conviction other than a single conviction for possessing less than thirty grams for personal use makes one eligible for deportation (a typical joint contains less than a gram, and the typical purchase limit in states with legal recreational sales is twenty-eight grams, or one ounce). That means that, for authorized immigrants like Kum, getting convicted for a trafficking offense, or getting convicted more than once for possession of any amount, even if only for a misdemeanor, can trigger deportation proceedings.

And if legal residents with marijuana convictions leave the country, they can be arrested when they return, and subjected to mandatory detention in an ICE facility until they’re deported.

Michael Vastine, director of the St. Thomas University School of Law’s immigration clinic in Miami Gardens, Florida, specializes in the immigration consequences of criminal convictions, especially for drug crimes. Whereas, according to Len Saunders, state legalization on the northern border was the catalyst for an uptick in admissibility cases, Vastine said that, after Trump was inaugurated, he almost immediately started seeing ICE initiate more deportation proceedings for drug crimes. Now, he sees marijuana-related deportation cases “every day.”

Sothy Kum with his daughter Emma, before he was deported. Credit: Photo provided by Lisa Kum.

By the time he left office, Barack Obama had cemented his legacy as “Deporter-in-Chief” by forcibly removing more immigrants from the US than any other president in history, including record numbers of non-criminals as well as immigrants whose only crime was entering the country illegally. However, in November 2014, halfway through his second term, Obama unveiled an executive action that, among other things, redefined deportation priorities and helped certain immigrants with misdemeanor cannabis convictions stay off ICE’s radar. “Felons, not families” was his mantra: When Obama took office in 2009, only 51 percent of “interior removals” were of immigrants who had committed what the Department of Homeland Security described as “serious crimes.” By 2016, that proportion had risen to 90 percent.

Under Donald Trump, however, that relief has vanished. Despite Trump’s own nonchalant attitude toward cannabis, his top appointed officials have made it clear that they have no intention of showing any leniency in enforcing federal laws.

In late January 2017, less than a week after his inauguration, Trump released a series of executive orders on immigration to “ensure the public safety of the American people.” Among the demands for border wall plans, restrictions of refugee resettlement, and beefed-up Border Patrol and ICE forces, the orders rescinded nearly all of the Obama administration’s protections for deportable immigrants, calling for, among other things, the arrest of “removable aliens” charged or convicted “of any criminal offense.”

As John Kelly, Trump’s then-Secretary of Homeland Security, made clear, “any criminal offense” includes cannabis crimes. In April 2017, he called marijuana a “gateway drug that frequently leads to the use of harder drugs,” and said that, though cannabis is not a factor in the war on drug smuggling, “ICE will continue to use marijuana possession, distribution, and convictions as essential elements as they build their deportation/removal packages.” (Kirstjen Nielsen, who took over as head of Homeland Security a few months after Kelly transitioned to his now former  job as Trump’s chief of staff, has made no official comment on cannabis and immigration enforcement, but has kept Kelly’s original policies.)

Despite increased momentum for legalizing cannabis on the state level, Kelly isn’t the only Trump administration official to have doubled down on federal prohibition. Recently ousted Attorney General Jeff Sessions has called cannabis “only slightly less awful” than heroin, and rescinded the Obama-era memos that directed top prosecutors to prioritize other offenses over marijuana in states where it’s legal.

ICE does not keep specific data to pinpoint how many legal residents with only marijuana convictions are being picked up under Trump, according to Danielle Bennett, an ICE public affairs officer. According to Bennett, ICE didn’t start compiling statistics on the criminal status of its arrestees beyond the binary “criminal” versus “non-criminal” until 2017.

In fiscal year 2017, almost three quarters — 76,503 — of the nearly 106,000 “criminal aliens” arrested by ICE had convictions related to “dangerous drugs,” according to data on ICE’s website. However, it’s not possible to know how many of those drug convictions involved cannabis, how many arrestees had more serious criminal histories in addition to their drug convictions, nor how many were residents who would have otherwise legally remained in the country.

While there is no clear picture of how cannabis laws are playing into immigration enforcement, a handful of high-profile enforcement actions have sparked concerns. An initial alarm was sounded in February 2017, when ICE arrested a former green-card holder from the Dominican Republic at a routine check-in in New York state for a six-year-old misdemeanor cannabis conviction. Last year, a nineteen-year-old Mexican Deferred Action for Childhood Arrivals recipient had his DACA protections revoked and was placed into deportation proceedings after getting caught with a single gram of cannabis in his car the year before.

Immigrants who came to the US as refugees are also facing deportation proceedings for cannabis convictions. Kum’s most recent arrest was part of a coordinated effort between ICE and the State Department to pressure uncooperative countries — including Cambodia, but also Vietnam, Somalia, Iraq, and others — to take back their nationals that the US wants to deport. The extent to which marijuana convictions are now affecting these refugee populations is unclear, but two lawyers representing Iraqis who were detained by ICE last summer said that their clients were rendered deportable solely for cannabis crimes. “It’s been a conversation in the community that it’s so stupid that these people can get deported because of marijuana convictions,” said Nadine Yousif Kalasho, another lawyer and a community leader who has been dealing with ICE raids on Iraqis.

Some states and localities where marijuana has been legalized have undergone efforts to vacate old misdemeanor cannabis convictions that wouldn’t have occurred under new state cannabis laws. But, because immigration courts define convictions more broadly than criminal courts, vacating old marijuana offenses doesn’t necessarily eliminate their federal immigration consequences, as communities like Seattle have come to realize.

Trump’s administration is “taking a sledgehammer to a relatively small problem,” said Vastine, the immigration lawyer from St. Thomas University. “The Obama administration had certain priorities, and they put them out in a memo. And Trump said, ‘We don’t have priorities. We go after everybody.’ So even the most minor things, if they come across you, they should be triggering proceedings.”

Lisa Kum has long, straight blonde hair. She has a warm disposition and a resilient do-what-you-gotta-do attitude, which she has to constantly employ since her husband’s absence leaves her in charge of her toddler daughter and a company that’s normally run by two people. During Kum’s incarceration, she says sales fell by half, mostly because his specialty in repairing printers’ fusers was a mainstay of their business.

Because of overwork, Lisa has struggled to stay healthy. She has trouble with cubital tunnel syndrome and tennis elbow, especially since she says her insurance company stopped paying for physical therapy because of lack of progress. In the petition Kum’s lawyer filed last January to stop his deportation, he attached copies of Lisa’s medical records, which stated that she needs to have surgery on her elbow that will leave her without the full use of her arm for six months to a year. The lawyer argued that Kum’s deportation would cause her “extreme and unusual hardship,” since without his help, she wouldn’t be able to run the business or take care of their daughter. ICE denied that petition a month later. Then, in March, Lisa had to have surgery for a triple hernia — a result of constantly straining to lift her daughter with her one good arm. She scheduled the surgery for a Friday so she could take the weekend to recover and only miss one day of work. At the time, she said it was only the second business day she had taken off since Kum’s imprisonment, the first being when she gave birth to her daughter.

Despite all of his own hardships, Lisa is the focus of much of Kum’s worries. “I just feel horrible that she’s going through this right now,” he said. Lisa says that the conversation around deportation — both in court and in public — too often ignores the collateral damage done to families. “It’s not just the person who is being deported who’s being punished,” she said. “You can hate the deportee all you want — you know, this so-called criminal — but it really is affecting everybody.”

On April 3, 2018, Sothy Kum was put on a plane and deported to Cambodia, along with forty-two others. It was the largest single deportation of Cambodian refugees in US history, according to Melanie Kim, a lawyer who represents the deportees, plus 1,900 more Cambodians at risk of deportation, in a class-action lawsuit. (Two other deportation flights to Cambodia have since occurred, and more are expected in the near future.)

By the time he realized that ICE wasn’t going to release him, Kum says that he was begging to be deported. Prison was “easy,” but life in county jail dormitories was both stagnant and unpredictable. He estimates that, during the final eight of his fourteen total months in immigration detention, ICE transferred him a dozen times between facilities in Wisconsin, Illinois, Louisiana, and Texas. He was eager to get his life started again.

Kum left a great deal behind in Wisconsin. He left Lisa and his daughter, Emma; his teenage son, with whom he loved to ski and play basketball; Lisa’s two sons, who worked for them at the printer shop; his now-eighty-two-year-old father, Sarin; his three brothers, one sister, and their families; Lisa’s family; and countless friends.

He arrived in Cambodia with only the contact information for an uncle and a cousin, neither of whom he had ever met, and a forty-pound suitcase. Kum estimates that only one of every five deportees on his flight had any belongings with them because ICE gave their families less than forty-eight hours’ notice to deliver their luggage to the Illinois detention center before they were flown to Louisiana for final processing. So he ended up giving away shorts and T-shirts to two men, and a pair of tennis shoes to another man, who had only his jail-issued slippers.

“I never thought I would come here,” Kum said from his condo in Phnom Penh, Cambodia. For the first couple months, he spent most of his time talking on the phone with his family in the US, walking to and from a nearby market, and learning to navigate the chaotic city traffic with his new scooter. He speaks the language, Khmer, but not enough to understand everyone all the time, and he says people often point out his accent. In early June, two months after he first arrived, he finally received documentation allowing him to work, so he’s weighing the possibility of teaching English, or perhaps working at an organization dedicated to assisting Cambodian deportees, since he has a degree in social work. He’s even been talking to a colleague who has business in Vietnam about starting another printer parts company for him and Lisa to run.

Even though it involves leaving her friends and family in the US, Lisa has a plan to keep her, her daughter, and Kum together. “I mean, I always did want to leave Wisconsin — I’ve been here my whole life,” she said, in her discernible Wisconsin accent. In August, she was able to take Emma to Cambodia to spend about a month with Sothy. But since her son is in his final year of high school, and because she hasn’t yet been able to find someone to buy their business, she and her daughter returned to Wisconsin. She says that leaving her husband in Cambodia was one of the hardest things she’s ever done, but she plans to take her daughter for another visit, and then to move in with him for good sometime during summer 2019. She’ll miss living near her family and friends, she says, but to her, raising her daughter with her husband will be worth it.

Though Kum is taking the situation in stride, he struggles with the fact that he can never go home simply because of his involvement with marijuana. “If they just gave us the chance to go visit or something,” he said. “I understand that they don’t want us over there…”

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