Chea Bou, a plainspoken, middle-aged man, fled Cambodia when he was nine years old. He recalls the way the grass pricked the bottom of his bare feet as he walked for miles to the Thai border. His family shared one can of rice a week and foraged in the jungle for insects and potatoes. Bou carried a knife to defend himself against the soldiers who escorted refugees fleeing the Khmer Rouge under Pol Pot's brutal regime in the late 1970s.
During the escape, Bou lost sight of his parents for several days and carried his younger brother on his back. Although traumatized by war, genocide, losing two siblings during the escape, and witnessing the executions of other refugees, Bou eventually made a life for himself and his family in East Oakland.
But today, Bou sits in a Haskell, Texas jail awaiting deportation to a country from which he fled more than three decades ago. He cannot read or write Khmer, and his recollections of the war haunt him. "The memories I have of Cambodia are of hunger and starvation, torture and killing, and fear and chaos in the roads," Bou said in a statement to immigration officials.
Bou's case is an example of what some advocates say amounts to "double jeopardy" for immigrants — that is, someone who has served time for a nonviolent criminal sentence, but then routed to a jail under the custody of US Immigration and Customs Enforcement for deportation. In 2013, Bou was convicted on six counts of nonviolent, drug-related crimes that resulted in a one-year criminal sentence that also automatically made him deportable.
"The punishment just seems so disproportionate to the crime he committed," said his lawyer, Linda Tam, director of the Immigration Clinic at the East Bay Community Law Center in Berkeley. "You look at his family and think, this isn't going to make the situation any better for anyone. He's going to have a lifetime punishment [if he were deported]. He's not a danger to society."
Since 1998, nearly 15,000 Laotian, Cambodian, and Vietnamese people have received final deportation orders. An estimated 68 percent of legal immigrants who are deported are nonviolent offenders like Bou. "It's one of the overlooked parts of immigration enforcement, which is long-term residents, people with status, who are getting deported," said Asian Law Caucus immigration attorney Anoop Prasad. Prasad is advocating for another East Bay man, Daniel Maher, who works at the Berkeley-based Ecology Center and may be deported to China for a crime he committed twenty years ago.
Bou, like more than 100,000 others, fled Cambodia and arrived in the United States as refugees, becoming legal permanent residents. Bou never bothered to apply for citizenship, because he wasn't planning on traveling internationally. If he had become a citizen, he would not be facing deportation today.
Bou and his family arrived in the United States in 1980, and except for a short stint in Pennsylvania, he lived in Oakland until his arrest in 2011. There, he met his wife, Sambath Nhep, while they were teenagers living in the same apartment complex. They fell in love and got married in a traditional Cambodian ceremony when they were sixteen and fourteen, respectively, and had their first of five children a year later. Sambath Nhep still lives in Oakland.
Bou worked full-time at Oaks Card Club in Emeryville as a dealer for sixteen years. In 2010, he was switched to the night shift. According to court records, Bou said his supervisor asked him to help him buy ecstasy pills through Bou's friend. Bou agreed.
On March 18, 2010, at a McDonald's parking lot in Oakland, an undercover law enforcement agent asked Bou to get into the rear passenger seat, where Bou handed over 1,989 ecstasy pills in exchange for $5,600, according to court records. Bou later sold 1,999 BZP pills in another transaction.
In 2011, law enforcement raided his Fruitvale home in the early morning and arrested him. In all, fifteen people were busted for racketeering and operating a drug ring at Oaks Card Club and at Artichoke Joe's Casino in San Bruno.
Although Bou's crimes were nonviolent, they were enough to trigger mandatory deportation. Bou served ten months of his one-year sentence. He was released this January and has been detained by ICE since then. He may end up spending more time in immigration detention than for his original crime.
Despite the fact that Bou's case had "no identifiable victim," according to a statement by his US probation officer, Bou is still considered a top priority for deportation in the eyes of ICE. He previously had one other criminal conviction for possessing a firearm in 1993. Under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, many legal, non-citizens became deportable.
Although Southeast Asian refugees are up to five times more likely to be deported due to criminal convictions than other immigrant communities, advocates for Bou are hopeful. The Southeast Asian Resource Action Center (SEARAC) is pushing for his release, and Bou has received one hundred letters of support from friends, neighbors, and community members. An online petition that launched in July has gained 2,500 signatures.
Recent policy changes, at least on paper, may also give Bou a glimmer of hope. A memo from the US Department of Homeland Security issued in November 2014 cites that immigration officials have the discretion to call off deportation in cases with "extenuating circumstances." In Bou's case, this includes being in the United States for 35 years, having a US citizen spouse and children, and having young children, one of whom is entering second grade. A US probation officer has also noted in a report that Bou is not a danger to the community.
An ICE spokesperson declined to comment about his specific case, but noted that Bou is in the top priority category for deportation because he was convicted of an "aggravated felony." Taking part in selling any amount of drugs is considered an aggravated felony under federal law.
The most compelling argument to keep Bou in the country is his family. Sambath Nhep is struggling. Their family has endured several tragedies. One of their sons was a victim of gun violence. Another son was diagnosed with leukemia just a day before Bou's arrest; that child has since passed away. Another child is in prison. That leaves their two youngest children for Nhep to take care of. Nhep works full-time, and sometimes overtime, at a medical device manufacturing company. Their teenage son dropped out of high school this past spring. "I know when his dad home, he more listening to his dad," Nhep said. Bou was allowed to spend a year at home after he was sentenced in his drug case to take care of his children and father-in-law. Advocates say this shows he was not a danger to the community.
Tam, Bou's lawyer, is trying to get Bou a U-visa — a legal status for victims of violent crime who cooperate with law enforcement. Bou was beaten and robbed in his apartment stairwell in 1992. Because he called the police and offered to cooperate, he was considered a witness in a criminal case.
A less commonly used argument for keeping Bou in the country is that he suffers from PTSD. In 2014, after serving his criminal sentence, Bou met with mental health counselors for the first time. "We are convinced that Mr. Vou [sic] would benefit for treatment for PTSD and depression," the counselors wrote in a report, noting his traumatic escape from Cambodia.
"A lot of people aren't aware of the different traumas that Southeast Asian refugees experience — genocide and violence that they experience at a young age, then facing language barriers, not a lot of support, and sometimes severe bullying when they arrive in the US," said Katrina Dizon, policy manager at SEARAC.
One of the reasons people commit crimes in the first place is because of their social situations — living in poverty and in high-crime areas — combined with mental health issues. "Cambodians, unfortunately, have both of those things going on — a mental health issue that's not been addressed, and they come here as refugees and come up in poverty situations," said Daryn Reicherter, a clinical associate professor at Stanford in Psychiatry and Behavioral Sciences, who has worked with many Cambodian refugees.
If Bou is deported, he would probably never receive the treatment he needs. "There's very limited mental health resources in Cambodia and it's mostly for the most severe folks, such as those with schizophrenia," Reicherter added.
President Obama recently visited a federal prison — the first sitting president to do so — and his administration has been pushing for releasing nonviolent drug offenders and emphasizing rehabilitation and second chances. Immigrant advocates believe Bou should be released and reunited with his family. "In the case of Mr. Bou, certainly, he has shown that the US is his home," said Gabriela Villareal, policy manager at the California Immigrant Policy Center. "He has a family here and he's continued to contribute to his community. We would encourage [the DHS] to release Mr. Bou, as well as others who fit this discretionary memo. It's quite troubling that the government hasn't released Mr. Bou."
Bou hasn't seen his wife and children for more than a year, because they can't afford to fly to Texas. He may be in immigration detention for months, perhaps years, as officials review his U-visa application.
Caitlin Patler, a University of California President's Postdoctoral Fellow at UC Irvine, who is studying the impact of long-term immigration detention on families, said there are better programs for families in this situation. "Detention is legally considered non-punitive," Patler said. "Yet certain people are held ... usually in prisons and jails or facilities owned by private corporations. There are several alternatives to detention that are not being explored across the country." One alternative used in the Central District of California gives detainees access to a bond hearing if they are held for more than 180 days.
Because of ever-shifting political climates and immigration laws, Nhep and Bou are not sure what will happen. But Nhep said she is sure that her husband would never commit a crime again.
"I wish I could stay and be with my family and start over again," Bou said by phone from jail in Texas. "I don't know what's going to happen. Just sit here and wait. Anything could happen."