Thawing ICE

Recent events hurt Mayor Gavin Newsom's case for refusing to enforce sanctuary law

Tracey Washington, Charles Washington, and Angela Chan, of the Asian Law Caucus at the ALC's office

Top San Francisco officials are still refusing to implement legislation approved by the Board of Supervisors that requires due process to play out before immigrant youth accused of felonies are turned over to the federal government, despite recent developments that call into question arguments that have been made against that policy.

Mayor Gavin Newsom, whose veto of the legislation was overridden by the board in November 2009, has been the main obstacle to putting the new policy in place. He has argued that it violates federal law, that the city faces civil liability for harboring undocumented immigrants accused of crimes, and that only serious criminals have been affected by his unilateral 2008 decision to turn minors over to federal authorities before they have been convicted.

But then Muni bus driver Charles Washington's wife, Tracey Washington, and 13-year-old stepson, undocumented immigrants from Australia, were placed under the control of U.S. Immigration and Customs Enforcement and ordered deported after the boy got into a fight at his middle school.

The case generated sympathetic media coverage because the felony charges and deportation order seemed excessive, so the federal government issued a 60-day reprieve to allow the family to finish applying for green cards and so the boy could have his day in juvenile court.

"All this got triggered by the non-implementation of a law that the board duly enacted last year," Washington said March 11, a week after getting his reprieve, expressing exasperation with city officials. "The police are overcharging kids and waiting for someone else to whittle the charges down, and the probation officers are referring the kids to ICE, waiting for someone else to deal with the situation."

Newsom's policy required the city's juvenile probation department to refer Washington's stepson to federal immigration authorities after local police charged the boy with felony robbery, assault, and extortion in a dispute over 46 cents. Authorities then required his mother, rather than his stepfather, to come pick him up and placed an electronic monitoring device on her pending a deportation hearing.

Newsom's policy has had a big impact in the city's immigrant communities. Since July 2008 when the mayor ordered changes to Sanctuary City policies that had been in place for two decades, 125 youths have been referred to ICE, according to a March 9 report from the city's Juvenile Probation Department.

In addition to the Mayor's Office, the JPD has refused to enforce policies enacted through legislation by Sup. David Campos that are technically supposed to be the new city policy on referring undocumented youth, and the City Attorney's Office has not required city employees to follow the new law, arguing it can only give advice and not compel departments to take action.

"With the benefit of legal advice provided by the City Attorney's Office and outside legal counsel, and in light of current restrictions imposed by federal law, particularly the position taken by federal law enforcement authorities, the department has concluded that it cannot modify its policies and practices," probation chief William Siffermann said at a March 4 hearing of the Board of Supervisors Rules Committee on why his department didn't implement the legislation.

Grilled by Campos, Siffermann could not identify a federal law that requires city officials to report kids to federal immigration authorities upon arrest. Instead, Sifferman pointed to what many in the criminal justice community see as U.S. Attorney Joseph Russoniello's overly broad interpretation of federal immigration laws, including his allegation that transporting arrested juveniles to court hearings amounts to "harboring aliens."