Double Punishment: California Prisons Set Up Thousands of People to be Detained and Deported by ICE—Including Citizens

By Victoria Valenzuela / Original to ScheerPost

At around five in the morning on Aug. 31, 2020, Patricia Medina heard a knock on the wall of her prison dorm in Central California Women’s Facility (CCWF) in Chowchilla, CA. She hadn’t slept at all that night. The correctional officer called her name.

“Your pass is here, it’s time to go,” Medina remembers them telling her.

It was her parole date. In a moment when she should have been filled with excitement to leave after 17 years, Medina was instead consumed by dread and uncertainty — she had no idea what would happen next because she was facing a detainer from the U.S. Immigration and Customs Enforcement. She hadn’t heard anything about her impending deportation to her native country, Belize, since ICE agents interviewed her three months after she arrived in prison— almost two decades ago. Her green card had expired and she now faced the threat of deportation after prison.

“I didn’t hear anything,” Medina said in a recent interview. “I was just hoping and praying that they wouldn’t show up, that maybe my paperwork would get lost somewhere. You wish for all these things because you don’t want to believe that it’s going to happen.”

She had 30 minutes to say goodbye to her dorm mates, many of whom she had befriended, gather her belongings and head to the release building.

As she walked out of her dorm, she felt her heart pounding and wondered if there would be an agent waiting for her. Medina, 54 at the time, hadn’t been to Belize since she was 12 years old, when her parents brought her to the U.S. She had no ties there. Her two sons, parents and siblings were in California, and she would also have to give up a construction job she already had lined up following her release if she were deported.

As she got closer to the building, she saw an ICE van. 

“My heart just dropped,” Medina said, “My stomach was in knots. It’s kind of like when reality kind of sunk in.”

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When she entered the release building, she was handcuffed and shackled, then escorted to the van, where they informed her that she would be flown to an immigration detention center in Aurora, CO, where she would appear in immigration court before being sent to Belize.

Now 58 years old, she lives alone in a country she had not been to since she was a child. Medina worries she might never see her parents, sisters and children again, as her parents and sister suffer from health issues that prevent them from traveling. 

“I might not get to see them again in this lifetime and it breaks my heart,” Medina said. “It’s rough emotionally, financially, physically, mentally…This is existing, I have no purpose here. I was hoping for an opportunity to remain in the states so I can reconnect with my children and make amends in person.”

“I’m just hoping something really changes for all these people that are going through what I went through,” Medina added. “Think about the families these people are leaving behind.”

For decades, the California Department of Corrections and Rehabilitation (CDCR) has been transferring individuals to ICE before their parole date after applying a “potential immigration hold” status it created to individuals the department believes to be “foreign-born.” Medina is one of 7,824 people just over the last five years that CDCR transferred to immigration detention to be deported. 

While many countries of birth are reported during the prison intake process, legal experts and advocates for the rights of incarcerated people have said that CDCR immigration hold policies can also be discriminatory, unlawful and based on racist assumptions. Public records obtained by ScheerPost show that it predominantly impacts Latinos and Asians. 

The American Civil Liberties Union (ACLU) and the Asian Law Caucus (ALC) have filed a lawsuit against the CDCR and CDCR Secretary Jeff Macomber for such practices that have impacted thousands. The 7,824 people transferred from 2018-2022 included at least 250 U.S. born citizens and an additional 600 cases reported as coming from “unknown” countries of birth. CDCR did not respond to repeated questions about what “unknown” meant and what was done to these people.  

“If CDCR is unable to ascertain the individual’s place of birth from the information received or the information indicates the individual may be a foreign national, CDCR inquires with ICE for an official determination,” CDCR Press Secretary Terri Hardy wrote in a statement to ScheerPost.

CDCR did not answer questions regarding why the potential hold system was created, why people facing these holds are blocked from accessing some prison programming and housing available to incarcerated U.S. citizens, and why some U.S. citizens are also targeted by their immigration policies. ICE media representatives declined to comment on this story citing a pending lawsuit.

The names of thousands of people in CDCR custody with a potential hold are sent to ICE to verify their immigration status. According to a CDCR representative, there are currently 6,058 people in state prisons with a CDCR “potential hold” and 7,037 more facing ICE detainment as of July 2023, which means their hold was verified and processed by ICE.

A CDCR representative told ScheerPost that “the Department contacts ICE prior to the individual’s release date to arrange a pick-up to occur within five calendar days before the scheduled release date” and that if ICE does not pick up the individual by their release day, the individual will be released “under parole or probation supervision.”

CDCR internal memos obtained by the ACLU show that the “potential hold” policy goes back to 2005, but CDCR had a similar policy in 1992 that also involved cooperation with immigration authorities, said ACLU attorney Sana Singh. In 1977, the federal government created the International Prisoner Transfer Program that permits the transfer of incarcerated people back to their country of birth during their sentence, which applies at the state and federal level if approved by the BPH. The CDCR Employee Operations Manual states that CDCR “Coordinates with the BPH to facilitate return of inmates to their country of citizenship” in compliance with this program.

Correspondence between CDCR staff and ICE agents obtained through the California Public Records Act by the ACLU shows that CDCR proactively sends ICE lists of people they believe to be “foreign born” — determined by skin color, race, ethnic group identification, ancestry— even if their reported country of birth is the U.S. 

Last October, Roth Chan submitted a request to join a program at the Central California Women’s Facility (CCWF) in Chowchilla, CA to prepare her for release from prison. Trying to make positive changes in her life, Chan, 37, had been spending her remaining year of incarceration studying for her high school diploma equivalent—the GED—volunteering in classes, attending church services and bonding with women in her support groups.

When Chan checked on her application for the reentry program, her prison counselor said it was denied because she was facing a “potential immigration hold, even though she is a U.S. citizen born and raised in the San Joaquin Valley in California. Although her parents emigrated from Cambodia, CDCR internal records identified her as Mexican.

“It made me feel hopeless,” Chan recalled. 

She said in a phone interview that when she explained her legal citizenship to her counselor in October 2022, she was told that CDCR could not remove the hold and she would have to wait for ICE to interview her within 31 days. She said she never got that call. Chan said in January 2023, she filed a request to eliminate the potential hold but was “denied” the next day because ICE had not yet responded to CDCR’s request for a “potential detainer investigation.” 

In late May 2023, Chan’s “potential immigration hold” was removed by CDCR without explanation. Chan said that she was never given any justification for why she was facing an immigration hold as a U.S. citizen.

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In 2018, the California Values Act prohibited local law enforcement from assisting and complying with immigration enforcement, and mandated that the CDCR could not  let immigration agents interview an incarcerated person  without the person’s written consent. Nor can CDCR limit access to rehabilitative and educational programming, or consider immigration status when determining prison classification (although the CDCR manual still states that “inmate workers … will not be eligible to receive external accredited certificates” that every other inmate worker receives). 

The California Constitution also prohibits law enforcement from treating people differently on the basis of assumed national origin and ethnicity. California is home to the largest immigrant population in the U.S., with 10.5 million immigrants, 5.8 million being naturalized citizens and more than 2 million individuals having lawful immigration status in the state, leaving 2.7 million undocumented and eligible for deportation. 

There have been three recent attempts by the state legislature to limit CDCR’s cooperation with ICE, and the most recent bill — the HOME Act — is making its way through the Assembly this summer. California is following the path of Illinois, Oregon and Washington D.C., which have created legislation that blocks state prisons from cooperating with immigration officials.

Resolving an immigration hold from prison can be difficult, current and former incarcerated individuals said in interviews. ICE often takes months or years to verify citizenship, in many cases not until parole dates are near, according to the ACLU lawsuit.

The 7,824 individuals impacted by these transfers to ICE detention in lieu of parole from 2018-2022 are from more than half of the countries in the world. This includes the transfers of 5,040 people reported to be born in Mexico, 499 from El Salvador, 346 from Guatemala and 138 from Vietnam. CDCR did not provide information about how many people were deported from these transfers.  

Nataly Marinero, a domestic violence survivor and transgender man who has spent 15 years in the California Institution for Women in Corona, CA worrying that he would be sent back to El Salvador, which he fled at age 17 after experiencing the trauma of sexual assaults and ongoing violence due to his sexual orientation and identity.

“I suffered a lot in my country,” Marinero recalls.

When he came to the U.S., Marinero said he felt free and less depressed than in El Salvador. He could live as an open transgender man. He feared that he would be sent to jail or be killed if he was returned to his native country. 

“I don’t want to feel like I had to hide my sexuality,” Marinero said. “It’s very traumatic.”

Marinero, 37, has been in CDCR’s custody since 2008 and is nearing his release date. In his time in CDCR, Marinero read many books, worked in the kitchen, went to school for his GED and did other rehabilitative programming in the evenings. 

In March, Marinero had a parole hearing where he was found eligible for release by the Board of Parole Hearings (BPH). According to transcript documents obtained by ScheerPost, the BPH said that Marinero “is not the same person that came to prison … [he] has made improvements on [himself] to the point that [he’s] not an unreasonable risk to public safety,” but moments later remarked that “[he’s] very likely to be deported.” Marinero was supported by the California Coalition of Women Prisoners, which urged Gov. Newsom to stop his transfer to ICE, stating in a petition: “Despite BPH recognizing Nataly’s transformation and rehabilitation, [CDCR] plans to turn Nataly over to ICE for deportation to a country that is known to actively target transgender people.”

Marinero’s case was referred to an en banc BPH hearing, where supporters were able to speak on Marinero’s behalf and urge the board to intervene in his ICE transfer. 

On Aug. 23, the BPH found Marinero was suitable to return to his California home. After years of grassroots organizing in a campaign with the CCWP, Marinero will be released to the community, where he looks forward to connecting with his supporters.

He said this has been “a stressful situation. The unknown [was] driving me crazy.”

“After 17 and a half years of being locked down, I’m finally going to get to see my friends,” Marinero said, speaking of the California Coalition of Women Prisoners. “I’m so happy.”

The ACLU and ALC in their lawsuit are seeking a court order requiring CDCR to comply with the California Constitution and California Values Act, which prohibit the use of state resources to assist immigration enforcement. Filed in April, the lawsuit “vindicates the fundamental rights guaranteed to every person in California to be free from unlawful discrimination” and said CDCR’s immigration policies are unlawful based on discriminatory classifications that violate California law. 

“If not for the fact that they’re immigrants or that CDCR has perceived them to be immigrants, they would just be allowed to go home to their families and communities, or have access to programs, services, and activities, just like any other person in custody,” said Sana Singh, an attorney with the ACLU representing the named plaintiffs in the lawsuit, Roth Chan, the Asian Prisoner Support Committee, Root & Rebound and Anouthinh “Choy” Pangthong, said, “This creates a dual system of punishment that discriminates against our immigrant communities.”

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For nearly 19 years in prison, Pangthong faced the threat of deportation. He has memories of an imaginative childhood playing outdoors and roaming around Stockton amid his family’s travels for migrant farming work up and down California. At the age of 17, he remembers calling his mother from a youth detention center one day and learning that she had become a naturalized citizen, and because of this, he, too, became  a citizen. 

“She’s been working all these years for that moment, and so when she became a citizen, she was like, ‘Son, we made it,’” Pangthong recalled.

But two months later when Pangthong turned 18 and was transferred to San Quentin State Prison, he was interviewed by two immigration agents who asked him questions about where he was born and how he got to the U.S. Pangthong answered their questions. 

“I told them that I am a citizen and they just disregarded that,” Pangthong said. 

Pangthong remembers thinking it unbelievable that ICE was trying to determine his status in the U.S. when he was already a citizen. Within a month, he was called to his counselor’s office where he was given a form that stated that he was facing an immigration hold. 

In the time that followed, Pangthong informed his counselor, the associate warden and other high-ranking officials at his annual classification meetings that he is a citizen and asked to have his hold removed, but they said there was nothing they could do to help him. According to Pangthong, they told him to contact ICE but did not give him any directions on how to do so. He remembers feeling helpless that his assertions of his citizenship were being ignored, even though he had proof.

“It was frustrating, I don’t even know what the steps were,” Pangthong said. “That added to a different type of heaviness that I already felt just being in prison.” 

After more than a decade passed, Pangthong said he felt even more stressed because he started to worry about going before a parole board with an immigration hold on his record. At one point he said he hoped to stay in prison just to avoid being deported.

“Throughout my sentence, it was always in the back of my mind, like, ‘What if they deport me and I’m a citizen,’ having to worry about when I am released, being scooped up by ICE,” Pangthong said.

Pangthong said immigration holds were not uncommon in prison. He said there were times his friends would get released, but later he would learn they were actually picked up by immigration authorities.

“It wasn’t a rare thing … those bittersweet moments where somebody I know gets to be free from prison, but only to go to another prison,” Pangthong said.

In 2017, three years before he would be released, Pangthong met a visiting immigration attorney at a program called ROOTS, or “Restoring Our Original True Selves” — who, coincidentally, had been helping his friend remove a potential hold. Pangthong wrote to the attorney who agreed to work with him pro bono about his case. 

The process of corresponding with the attorney and gathering paperwork to send an affidavit proving Pangthong’s citizenship to the Department of Homeland Security took several months. Pangthong said it also involved having retraumatizing conversations with his family — worrying if he would get sent to Thailand, where they had fled a war — and they wondered if they would also be impacted by immigration enforcement. A month after the letter was sent, he received a letter from the DHS confirming that he was a citizen and saying that his hold would be removed immediately.

“For 19 years, I just had this detainer on me for no reason,” Pangthong said.

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Pangthong and Chan are plaintiffs in the lawsuit against CDCR and Macomber to end the policy that currently has six percent of the CDCR population in a “potential hold” status. 

“CDCR’s potential hold and ICE notification policies risk wrongfully transferring U.S. citizens, like Pangthong and Chan, and lawful permanent residents to ICE custody,” the ACLU/ALC lawsuit stated.

According to the lawsuit, CDCR placed and continues to impose a potential hold on Maria Hernandez, a U.S.-born citizen, but that also is being ignored by CDCR officials. It states, “CDCR assumed that Ms. Hernandez was not born in the United States and placed a potential hold on the basis of actual or perceived race, ethnicity, ethnic group identification, color, ancestry, national origin, or indicia of national origin.” 

The lawsuit also mentions Brian Bukle, a naturalized citizen who was facing an immigration hold in CDCR custody despite insistence that he is a U.S. citizen and CDCR’s own records indicating the same. The lawsuit says that in June 2020, instead of being released from prison and spending Father’s Day with his family, Buckle was transferred and detained in immigration detention for 36 days. There, he was also repeatedly ignored when he presented evidence of his citizenship and was urged to sign deportation paperwork until an immigration lawyer got involved and ICE verified his citizenship. 

It mentions another naturalized citizen who has and continues to face a potential hold in CDCR custody since 2017, and three other people who were facing potential holds and were repeatedly ignored when they told CDCR staff that they were citizens — these holds weren’t removed until after ICE had instructed CDCR to do so, according to the lawsuit.

The lawsuit also mentions instances where, according to CDCR’s own records, they classified some people as Hispanic who were of other ethnicities, including Chan, who is Cambodian but was classified as Mexican.

This policy is illegal, Singh states: “With this unlawful targeting of immigrants and refugees, the California prison system is also failing at its alleged mission to provide people with the tools to return to their communities, to have access to rehabilitative and educational programs.”

In 2020, during the height of the pandemic, transfers from California’s prisons and jails accounted for most of ICE’s bookings into detention centers — so much so that they began transferring incarcerated people to immigration centers in Colorado. California detention centers had reached capacity, causing the California Attorneys for Criminal Justice and the American Immigration Lawyers Association’s Southern California Chapter to intervene by sending a petition to the California Supreme Court to “halt all local law enforcement transfers to ICE during California’s state of emergency due to COVID-19.” 

“For over a decade, we’ve been working on trying to break the links between state and local law enforcement and ICE,” said Carl Takei, Criminal Justice Reform Program Manager at the Asian Law Caucus. 

Since the California Values Act went into effect in 2018, there have been further legislative efforts to place restrictions on CDCR’s immigration policies, such as the VISION Act in 2020 that would have restricted CDCR’s cooperation with ICE, but last year it fell three votes short In the state Senate. In 2019, Gov. Newsom vetoed a similar bill on the basis that it would “negatively impact prison operations.”

The bills faced opposition from the California Correctional Peace Officers Association, which represents CDCR correctional officers, and from the California Police Chiefs Association, calling it “a major threat to public safety.” Takei said that there was also a lot of overemphasizing immigrants and crime. A recent study by the CUNY Institute for State and Local Governance found that there is no correlation between immigrants and high crime rates, and that citizens are more likely to commit a crime than an immigrant. 

“Scaremongering has too often drowned out the discussion that we need to have about what kind of system we want to have, whether that system was fair and equitable for immigrants and how this impacts immigrants and their families throughout the state when CDCR and other law enforcement agencies engage in discrimination like this,” Takei said.

“At the end of their time in custody, immigrants who have benefited from criminal justice reforms …  never get the same opportunity to reunite with family and experience the benefits of that parole,” Takei said. “CDCR contacts ICE and ensures that rather than being able to leave the prison gates, immigrants who are granted parole get shackled and placed into an ICE van and taken to an ICE detention facility directly from the prison.”

In April 2023, Assemblymember Wendy Carrillo introduced the HOME Act, a bill that would “prohibit the CDCR from detaining people on the basis of a hold request, providing an immigration authority with release date information, or responding to a notification request, transferring to an immigration authority, or facilitating or assisting with transfer requests.” This bill would apply to people who qualify under existing criminal justice reforms recently passed by state Legislature. On Aug. 14, the bill passed the Senate’s Appropriations Committee and is now going through the Senate and Assembly, and if passed, will go to Gov. Newsom’s desk.

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Since his release in 2020, Pangthong has been advocating for immigrant and formerly incarcerated communities by participating in community events and hosting a podcast focused on storytelling and changing the narrative around these topics.

In early July, Pangthong attended a convening in Stockton of community members and advocacy organizations rallying in front of an ICE check-in center in support of a resident. There, he noticed the terrified looks on the community member’s family not knowing what was going to happen, and the many other families there as well.

“When the judge sends us to however many years, that is how many years we’re supposed to serve,” Pangthong said. “Deporting individuals, ripping folks apart from their family — that’s another form of punishment and that does nothing for public safety.”

Pangthong said that he hopes that the HOME Act is passed to keep families together and end the double punishment faced by immigrants caught up in California’s criminal justice system, and so that community members can feel safe from the harm of deportation. 

“The ‘R’ in CDCR is supposed to be for rehabilitation,” Pangthong said. “If these practices aren’t stopped, then it just creates more harm. …What I really want out of [this lawsuit] is for CDCR to stop its practices and its policy against foreign born nationals.”

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