The deadline for implementing San Francisco’s amended sanctuary city policy is rapidly approaching and immigrant rights groups, the city attorney’s office and U.S. attorney Joseph Russoniello are embroiled in a legal back and forth over the issue.
Despite the San Francisco Board of Supervisors’ Nov. 10 vote to override the mayoral veto of a revision to the city’s sanctuary policy, the Juvenile Probation Department continues to report suspected undocumented minors accused of a felony to U.S. Immigration and Customs Enforcement when they are booked.
The legislation has a deadline for implementation of Feb. 9.
“We are still conferring with the city attorney’s office,” said William Siffermann, chief parole officer for the JPD. “Our intentions are to follow state and federal law and the ordinance to the extent permitted by state and federal law – which are the last words of the ordinance.”
The new legislation would require juvenile probation officers to report undocumented youth to federal immigration officials only after they’ve been convicted of a crime—not upon their arrest. Accused minors would have access to attorneys, and if charges were dropped or reduced to misdemeanors, they would not have to fear deportation.
“We have a sanctuary policy that is consistent with state and federal law,” Mayor Gavin Newsom said outside the Jan. 7 inauguration of City Attorney Dennis Herrera, which was also attended by protesters calling for the implementation of the board policy. “The Board of Supervisors passed legislation that requires itself to be consistent with federal law. That means that their legislation has been, by definition, enacted because it contradicts itself. You can’t pass something that’s inconsistent with federal law.”
Matt Dorsey, spokesperson for the city attorney’s office, said federal code 8 U.S.C. 1373 is “the big one” concerning implementation of the amended sanctuary city ordinance. Interpretation of that federal law, and the separation between state and federal powers under the 10th Amendment to the U.S. Constitution, form the crux of the legal debate over the ordinance.
The federal code only requires state and local governments to cooperate with specific requests from federal officers regarding citizenship, according to Dean of U.C. Davis School of Law Kevin Johnson.
“Generally speaking, there is no duty to disclose immigration status of persons arrested on state and local governments,” Johnson wrote in an e-mail to El Tecolote. “Other cities, like New York and LA, have similar – indeed more expansive – policies and have neither been sued or alleged to have violated federal law.”
Immigrant Advocacy Groups Criticize City Attorney
Herrera’s inauguration drew a group of protesters because of a memo he authored in response to a request from Supervisor David Campos. The memo was released Dec. 16 as a response to Campos’ written inquiry as to, “whether Mayor Newsom has the authority to unilaterally refuse to implement the duly-enacted civil rights legislation.”
Herrera’s 10-page response said the decision to implement the policy lies with the JPD and their assessment of state and federal law. The memo also outlined the role of the city attorney’s office.
“I would hope that the city attorney would take a strong position in defense of the Sanctuary Ordinance,” said Hillary Ronen, one of the protesters. “I’m extremely disappointed by the memo that he released. It’s Herrera’s job to stand up for city laws that protect immigrant youth in San Francisco.”
Immigration advocacy groups have voiced a disagreement with both the mayor and city attorney’s handling of the ordinance.
“Unfortunately, Herrera has yet to stand up for the democratic process. Rather, it appears he is asking Juvenile Probation to determine on their own what is valid under federal and state law, even though they do not have the legal expertise to do so,” Angela Chan, staff attorney for the Asian Law Caucus, wrote to El Tecolote. “Any assertion that city officials cannot be prohibited from reporting youth to ICE is not addressing the central concern in this debate, which is that probation officers should not be required to report youth to ICE at the booking stage.”
Cinthya Muñoz-Ramos from the St. Peter’s Housing Committee said the ordinance doesn’t mean undocumented youth won’t be prosecuted. “It just means they would have an opportunity to be heard before they are reported to ICE,” she said. “It’s just basic due process. I don’t see how basic due process puts anybody’s life in danger.”
In response to charges from immigrant rights activists, Herrera’s office has been attempting to explain the role of the city attorney – that of legal council without the ability to implement any policy. The city attorney’s Web site notes that Herrera “does not, in fact, deport anyone” in response to a flyer demanding that he “Stop deporting immigrant youth.”
“We have to play a deferential role as the lawyer for the city,” Dorsey said. “Policy decisions have to be made by the policy makers. The city attorney doesn’t green-light or red-light decisions. If juvenile probation decides that they want to alter their policies and practices, we’ll defend them. If they decide not to, we would defend that.”
Future Litigation
“There is a legal theory that the U.S. attorney has put forward recently that says to not report is to harbor,” Dorsey said. “In other words, he’s taking a very broad view of the statute that would seemingly create an affirmative duty, and that’s something that we disagree with.”
U.S. attorney Joseph Russoniello’s opposition to the amended sanctuary ordinance has influenced Herrera’s advice to the JPD. Russoniello’s novel interpretation of “harboring” undocumented immigrants has laid the foundation for a possible lawsuit against the federal government on a 10th amendment claim, according to Dorsey.
He said the 10th Amendment doesn’t grant the federal government the constitutional authority to force San Francisco or any local police force to act as immigration enforcement.
Herrera has been having discussions with legal advocates about the possibility of challenging Russoniello’s interpretation. While some are hesitant to sue the federal government, “a lot of lawyers think that we’re probably better off being on the affirmative side than waiting to get sued,” Dorsey said.
Angela Chan underscored the human cost of delaying implementation of the amended ordinance with litigation.
“The faster we can resolve this, the better it will be for the youth who are being unnecessarily torn from their families,” she said.
Timeline
Dec. 23, 1985 The Board of Supervisors passes a resolution designating San Francisco as a City of Refuge for immigrants seeking asylum from El Salvador and Guatemala, who fled civil war and political persecution but were unable to gain asylum in the U.S.
Oct. 24, 1989 Four years later, San Francisco extended the policy to all immigrants and passed the City and County of Refuge Ordinance, holding that no city resources or funds can be used to assist with immigration enforcement.
Feb. 7, 1994 Then Deputy City Attorney Buck Delventhal issues opinion to the Juvenile Probation Department that juveniles charged with felonies can be reported at time of booking under section 12H.2-1 of the Sanctuary Ordinance.
June 22, 2008 Tony Bologna and his sons, Michael and Matthew, were killed in a drive-by shooting. The alleged shooter, Edwin Ramos, is suspected of having been an undocumented youth with a juvenile criminal record.
Further investigation revealed that Ramos had been reported to ICE for previous criminal activity; however, an attempt was never made to apprehend him, according to the Sherriff’s Department.
June 1, 2008 Mayor Gavin Newsom launches his race for governor by beginning a gubernatorial campaign committee to gather campaign contributions.
July 2, 2008 Mayor Newsom revised the policy and ordered city officials to turn over to federal authorities all juveniles accused of a felony who are suspected of being undocumented at the booking stage, right after a youth is arrested before juvenile court proceedings begin. Since last summer, that number has reached more than 160.
July 29, 2008 A coalition of 27 immigrant and youth community-based organizations hold a press conference and rally in front of City Hall in support of fair treatment for undocumented youth in the juvenile system.
July 30, 2008 12 to 15 Minutemen hold a rally at City Hall to demand deportation of immigrant youth. Hundreds of counter-protesters show up in support of immigrant youth and families.
Aug. 18, 2009 Supervisor David Campos introduces an amendment to the Sanctuary Ordinance which moves the point of referral of minors charged with felonies who are suspected of being undocumented from the booking stage (right after arrest) to after a youth is found to have committed a felony by a juvenile court.
Aug. 18, 2009 City attorney’s office issues a memo to the Mayor entitled “Legal issues in connection with the proposed amendment to the Sanctuary City Ordinance.” The memo was leaked to the San Francisco Chronicle by Mayor Gavin Newsom.
Oct. 27, 2009 Board of Supervisors passes the amendment by a vote of 8 to 3.
Oct. 28, 2009 Newsom vetoes the amendment.
Nov. 10, 2009 Board of Supervisors overrides Newsom’s veto by a vote of 8 to 3.
Nov. 10, 2009 City Attorney Dennis Herrera sends a letter to U.S. Attorney Joseph P. Russoniello asking for his assurance that San Francisco law enforcement officers and employees will not be prosecuted if the ordinance is implemented.
Nov. 24, 2009 Herrera responds to the Asian Law Caucus, the ACLU of Northern California and the Lawyers’ Committee for Civil Rights, assuring his office’s intention “to pursue an aggressive, vigorous defense to enable the law’s fullest possible force and effect.”
Dec. 3, 2009 U.S. Attorney Joseph P. Russoniello responds to Herrera’s letter stating he cannot give any such assurance.
Dec. 10, 2009 Campos sends letter to Herrera asking the City Attorney’s office to write an opinion addressing whether the Mayor can “unilaterally refuse to implement the duly-enacted civil rights legislation.”
Dec. 16, 2009 Herrera responds to Campos with a 10-page memo outlining executive powers under city charter, the role of the City Attorney’s office, and final opinion that the decision to implement the ordinance lies with the JPD.
Jan 7, 2010 Herrera is sworn in to this third term as City Attorney at City Hall’s North Light Courtroom.
Feb. 9, 2010 Deadline for implementation of the Ordinance of JPD. Meanwhile, youth who are suspected of being undocumented continue to be referred to ICE at the booking stage.