California Governor Newsom Issues 22 Pardons

10 allow the recipients to avoid deportation due to their crimes

By Andrew R. Arthur on November 16, 2020

California Governor Gavin Newsom (D) last week issued 22 pardons, 13 commutations of sentences, and four medical reprieves. Some were garden-variety acts of clemency, but 10 were issued to allow the recipients to avoid the immigration consequences of their criminal activity. Three of the latter variety really stand out.

Saengsavan Choum was convicted in 1999 in California for voluntary manslaughter. He was 21 and the driver of a getaway car when his partner shot and killed a rival gang member. Choum received a sentence of four years for that offense.

Duc Nguyen was 16 when he and associates got into a fight. One of those associates stabbed and killed one of the others in that affray. Nguyen was sentenced to 14 years for voluntary manslaughter in 2003.

Somdeng Thongsy was convicted of second degree murder and attempted second degree murder in 1997. He received a sentence of 27 years, four months to life for those convictions. At the age of 17, he and associates got into a fight with rival gang members. He shot and killed one of those rivals, and injured two others.

The pardons for the three notes that each is facing "impending deportation", although their immigration statuses are not listed. It is safe to assume, however, that each is in a lawful status, facing removal on criminal grounds relating to their convictions.

Pursuant to section 237(a)(2)(A)(vi) of the Immigration and Nationality Act (INA), the criminal grounds of removal in sections 237(a)(2)(A)(i) (for a crime involving moral turpitude (CIMT)), (ii) (for two CIMTs not arising out of the same course of conduct), (iii) (for an aggravated felony or felonies), and (iv) (for high-speed flight from an immigration checkpoint) do not apply to a conviction if the alien "has been granted a full and unconditional" gubernatorial pardon.

Each of the individuals described above received a full and unconditional pardon from Governor Newsom.

Murder is defined in section 187(a) of the California Penal Code as "the unlawful killing of a human being, or a fetus, with malice aforethought". Under section 188(a)(1) of the California Penal Code: "Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature."

Second degree murder is defined by section 189(b) of the California Penal Code, and is a catchall for any kind of murder that does not fall within the limited definition of first degree murder in subsection (a) therein.

Murder is an aggravated felony as defined in section 101(a)(43)(A) of the INA, and would also be a crime of violence under section 101(a)(43)(F) of the INA (if the term of imprisonment is a year of more, as in the case of Thongsy), as well as a CIMT.

Manslaughter is defined in section 192 of the California Penal Code as "the unlawful killing of a human being without malice". Pursuant to subsection (a) therein, manslaughter is "voluntary" when it is committed "upon a sudden quarrel or heat of passion".

Voluntary manslaughter is (at least arguably) an aggravated felony crime of violence where the sentence is a year or more, and a CIMT.

Given these facts, and assuming that they do not have any other criminal convictions that would render them removable from the United States (and assuming that they are otherwise in a lawful immigration status), Newsom has, effectively, rendered Choum, Nguyen, and Thongsy not removable.

That is his right as governor, and Congress can always eliminate the implications for immigration purposes of such acts of clemency as it sees fit. I will note that the pardon power has been recognized (for CIMTs, at least, before the advent of aggravated felonies) in the INA since it was passed in 1952, and in fact was a bar to deportations for CIMTs as far back as the Immigration Act of 1917.

Immigration is an issue for the national government, but ours is a federal republic, and most crimes are punished at the state level. It is logical — if not always reasonable — for the federal government to respect the actions of the executive of the several states in pardoning criminals for the crimes committed there.

Should Newson have issued those pardons?

That is an issue for the people of California, but with due respect to them, these are serious crimes, and (I hope) Newsom thought twice before issuing those pardons. In each case, someone died, needlessly. Deportation is the ultimate punishment for immigrant criminals (except in death penalty cases, of course), and not only a strong deterrent, but also a way to ensure that such criminals do not act in that jurisdiction again.

Of course, DHS would appear to bear some responsibility in these cases. They could have acted to remove Thongsy since 1997, Choum since 1999, and Nguyen since 2003. Perhaps ICE identified each years ago, and the imminent removal of each has been pending for 23 years, 21 years, and 17 years, respectively. If not, however, it becomes easier for a governor to issue a pardon with each passing day, contending that the convictions are old and that the actors have subsequently been rehabilitated.

All of that considered, however, California has been a sanctuary state since January 2014, when the so-called TRUST Act went into effect. Such laws serve to prevent ICE from identifying and detaining criminal aliens. You really cannot blame ICE for not removing aliens for crimes that they know nothing about.

In any event, three aliens convicted of serious crimes in which someone died will likely be able to remain in the United States indefinitely. I say "the United States" because nothing prevents any of them from moving out of the Golden State, as six million others did between 2007 and 2016. If they reoffend in California, voters there can vote the governor out. If they reoffend elsewhere, however, the victims (and the community as a whole) will only have Gavin Newsom to blame.