WASHINGTON DC —
A federal immigration judge in the northern U.S. state of Minnesota has granted a rarely used waiver to a Cambodian who arrived legally in the United States as a child refugee and was detained for deportation as an ex-convict.
The judge based her decision on the extreme hardship his forced return to a homeland he hardly knows would cause the multi-generational family he supports, according to activists who attended the hearing.
U.S. Immigration and Customs Enforcement officers detained Ched Nin, 37, in August 2016. In 2010, he was sentenced to two years in prison after being convicted on charges that included second-degree assault, according to court records.
Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, his conviction meant he lost his legal permanent residency, or green card, and faced deportation, until Judge Susan Castro of the federal immigration court in Bloomington, Minnesota, granted what is known as a Section 212(h) waiver on February 24.
Ched was released immediately and said that while he was happy to be home, he was saddened that ICE was continuing to detain seven other Cambodian former convicts.
"I want to help keep families together," he said in his only public remarks.
No naturalization without pardon
With the waiver, he will regain full legal permanent resident status, "but unless he gets a governor's pardon, his crime bars him from naturalizing," said Katrina Dizon Mariategue, the immigration policy manager at the Southeast Asia Resource Action Center in Washington.
Once an immigration judge grants such a waiver, "it is rare for the government to appeal," Jayesh Rathod, an immigration law professor at American University's Washington College of Law, told VOA.
An ICE spokesman said he could not comment on the decision because of privacy laws protecting U.S. citizens and legal permanent residents.
Reacting to the waiver, Dan Kesselbrenner, executive director of the National Immigration Project, told VOA, "There are many people who deserve the waiver. I hope judges are able to maintain independence to judge each case on its own."
Section 212(h) waivers can be applied except in cases of "murder or criminal acts involving torture or an attempted or conspiracy to commit murder or criminal acts involving torture."
Linus Chan, a University of Minnesota Law School professor whose practice specializes in immigration detentions, led Ched's legal team. Its argument was based on the extreme hardship that deportation would cause his family because he is their sole support, said Dizon Mariategue. Key is the hardship that would be caused to an American citizen, Ched's wife, who brought the petition, and his children.
Although the extreme hardship "can be a high bar, it is not meant to be an impossible bar," said Chan.
Judges can weigh a variety of factors in making a decision, including the seriousness of the crime, the chance of reoffending, the person's length of time in the United States and previously granted permanent residency status.
According to Dizon Mariategue, the immigration judge found extreme hardship in Ched's case. One child with a rare heart condition who is not expected to live past age 25 would have lost health care and access to surgeries without his health insurance. Child Protective Services recommended that two of his children from a previous marriage be placed with him so that they could have a better home or risk being placed in foster care. He is the sole family member with strength to lift and care for his immobile, elderly father, a legal permanent U.S. resident. Without his income as a union carpenter, the family faced foreclosure on their home.
Strong evidence needed
"I think the hardest thing to prove in a 212(h) waiver is that extreme hardship," said Rathod. It requires strong evidence of "some kind of hardship to a qualified relative," which is almost impossible to prove without strong legal support, he added.
Given that the 1996 law makes it very difficult for individuals to have legal representation after they have been detained, "there is a problem," said Rathod.
"Really, this victory is a combination of not only the really good legal strategy, but a lot of the support from the community as well," said Dizon Mariategue.
Ched's wife, Jenny Srey, and other family members organized legal support from local and national organizations.
Danielle Robinson Briand, who represents two of the remaining seven Cambodian men detained by ICE, said the fight for their release would be more difficult under the administration of President Donald Trump. They were transferred from ICE detention in Minnesota to the Oakdale Federal Detention Center in Oakdale, Louisiana, on Wednesday.
Socheata Pharseth, whose husband is now in Louisiana, said that while she was happy for Ched's family, "my husband started to lose hope and has given up. But I am not giving up. I continue to fight and hope that one day we can be reunited."