Are undocumented kids accorded due process in SF?Reading the Chron’s article yesterday about citizens suing the US for having been wrongly held/deported, reminded me of an email exchange I had with Mayor Newsom’s mayoral spokesperson Nathan Ballard earlier this year.
I’d asked Ballard what the city is doing to guarantee due process to juveniles who are arrested on suspicion of having committed a felony and who the city suspects are also undocumented.
It’s a question that immigrants rights’ advocates have been asking since Newsom changed the city’s sanctuary policy last summer. And the answers coming from the Mayor's Office have been troubling to say the least
As these advocates note, using Juvenile Probation Department data to support their case, back in 2006 there were 288 petitions filed against Latin American juveniles, but only 211 were sustained. That means that if Newsom had revised the city’s policy in 2006, 77 Latin American juveniles who weren't actually found to have committed a felony could have been reported to ICE and deported.
And as the Chronicle noted yesterday, though US citizens are a tiny fraction of the 400,000 people who pass through ICE custody each year, cases in which they are held and/or deported "occur with some regularity."
But when I asked Ballard what the City is doing to guarantee due process to juveniles—and thereby avoid being sued for wrongfully deporting a kid who may be here legally, and may be innocent of any felony--Ballard said, “Your questions demonstrate a certain level of confusion on your part about California law and the role of our court system, but I'll make a good faith effort to get at the heart of what you're trying to prove here, which is basically that City authorities aren't affording juvenile criminal suspects due process protections, which simply isn't true.”
Ballard recommended analyzing the City's role on two tracks: notification to federal authorities and criminal proceedings.
As he observed, last year, Mayor Newsom changed City policy to require notification to the federal authorities of undocumented criminal suspects, regardless of the suspect's age.
But according to Ballard, “ By no stretch of the imagination do City officials violate the criminal suspect's due process merely by notifying federal authorities: California's courts have consistently held that the collection and dissemination by local law enforcement officers of information indicating an arrestee's immigration status does not violate due process of law.”
(He suggested taking a look at American G.I. Forum v. Miller (1990) 218 Cal.App.3d 859, 267 Cal.Rptr. 371.)
As for criminal proceedings, Ballard claimed that, “Once the criminal suspect has been booked for a crime and is in the juvenile court system, City authorities including the Public Defender, the District Attorney, and the Juvenile Probation Department all work together with the judge and other court officials during court proceedings in order to ensure that the criminal suspect is afforded due process of law.”
“So it is apparent that on both tracks, the due process of criminal suspects is protected by City officials,” he said.
But Angela Chan, staff attorney for the Asian Law Caucus, told us that it’s “simply not true,” that city authorities all work together with the judge and other court officials to ensure suspects are afforded due process.
“Both according to the text of the Mayor's July 2008 undocumented youth policy and in practice, juvenile probation officers are not coordinating with the public defender's office, the court, etc,” Chan stated..
“Instead, juvenile probation officers are referring youth who the probation officer suspects are undocumented (even though they have no formal training in immigration law) to ICE at the booking stage PRIOR to when the youth is appointed an attorney or appears before a juvenile court judge,” she said.
“Therefore, since the point of referral is at the booking stage, right after arrest and before the youth gets a chance to appear in juvenile court, there is certainly no opportunity for the "City authorities" to work together,” she said. “Rather, regardless of whether the court finds the youth to be innocent of the charges or reduces the charges from felonies to misdemeanors, ICE will still be waiting for that youth when he or she is released from juvenile hall custody."
“This policy and practice, written and implemented by the Mayor's Office, is a plain and simple violation of due process because these youth do not get an opportunity to contest the charges against them before they are reported to immigration for deportation,” Chan continued. "Once these youth are in ICE custody as a result of referral and / or notification from the probation officer, they are transported to secure federal detention facilities, which are often out of state in remote areas where there is very little to no access to immigration attorneys."
“San Francisco youth have been transported by ICE to facilities in Washington, Indians, and most recently, Florida,” she added. “Faced with possible indeterminate detention in a federal facility while the immigration proceedings occur with and sometimes without an attorney, the youth may waive the court proceedings and be deported back to a country where they do not have any family who can take care of them.”
“This is one of the many problematic paths the case could take, which also shows the due process problems that occur once the youth is referred to ICE. The Mayor's Office should have taken these concerns into consideration when they drafted the policy a year ago.”
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Comments (8)
So if I a person was pulled over for speeding and the cop saw their was a dead person covered in blood in the back seat, the driver should be let go because he was pulled over for speeding and his due process rights were violated?
Another stab at the destruction of language by the left that learned from Orwell that mangling of language is good, instead of the message that everyone else got, that it was bad to destroy language to make your own new reality.
Posted by glen matlock | July 29, 2009 03:16 PM
What's Orwellian is that anyone would invoke George Orwell, of all people, in defense of denouncing children to the border police.
Posted by Martha Bridegam | July 29, 2009 04:49 PM
martha bridegam
progressive's "Children" + Edwin Ramos = three dead people
With all the "progressive" lawyers who are crazy for suing to get their way and have found rights for every special interest under the sun, don't you think that there would already be a law suit in the works?
This "due process" thing is a joke on you and every other true believer.
Posted by glen matlock | July 29, 2009 04:59 PM
"True believer"? In the U.S. Constitution? Yes. Sworn to support it, in fact.
"This 'due process' thing" is part of what it means to be American. It is a matter of bedrock Constitutional principle in our country that the accused must be granted their day in court whether they appear to be innocent or not.
You can call due process rights a joke until you're the one unfairly accused and someone in authority cuts off your chance to tell your side of the story. Then you'll be shouting about your rights, and you'll want that authority to let you speak.
Posted by Martha Bridegam | July 30, 2009 11:13 AM
Here I'll help you with the constitution. Many true believers often do need it. Its a problem on the kooky right too.
A civil crime, such as a parking ticket or being in the USA illegally do not have the same constitutional framework as say, murder. A murderer goes to trial, a person here illegally no matter how they are caught are charged with a civil infraction.
I realise this is futile as you and the Guardian mindset pick and choose your way through the constitution like a born again Christian picks their way through the bible, but an illegal alien does not have the right to a trial.
Oddly at the state level the democrats in their thirst for money have transfered as much as they can to civil code. Once upon a time in Ca a person could go before a judge for various tickets. Now you just pay and obey our democrat masters.
So its odd, the same civil law that allows lefties to extort millions from the citizens without the citizens facing their accuser or seeing a judge is now a terrible system when they don't like it?
I would love to see being an illegal alien lifted above a civil infraction but I doubt you would as it may well lead to helping end our open borders.
Also again, if there was any real constitutional issue there would be some douchey public lawyer douche in court decades ago. If you respond please address that, not just blabber about the constitution that you pick and choose your way through.
There is the real constitution that SF liberals can ignore as in the prop H hand gun ban, and there is the dreamy constitution that they wish at end of rainbows over.
I hope this PSA helps, you can find more information on your constitution that you can pick and choose your way through at the library.
Posted by glen matlock | July 30, 2009 12:28 PM
How about people who don't get a trial, because some folks believe "illegal aliens" don't deserve one, but turn out to be citizens anyway? And then they come back home--and sue your pants off? Or worse, they end up injured or dead because of this wrongful deportation? And now their families are suing your pants off. How is that for a waste of tax payer dollars?
Posted by Sarah | July 30, 2009 12:41 PM
I agree, it shouldn't be a civil issue at all, go before the judge, if you say you are a citizen then you get held over and things get worked out. If you are not a citizen you get deported with a conviction record, if found in USA again jail time. It might cost some money starting off but in the long run it will be a winner.
...and Sarah, we both know the Bay Guardian has never cared about the wise use of tax payer dollars unless it was political. As in the various battleships aircraft carriers and free museums that could come to the city.
And again, California democrats have transfered as much as they can to civil infractions so that a person doesn't get to see a judge. This red herring of "due process" is a joke, I would bet that we could go back and the Guardian was cheerleading the whole way in the 90's to move things over to civil infractions.
Sarah, you Guardian employee true believers should just say what you want. It may dupe some weak minded readers if you spout about Mumia being innocent, or writing whole columns about the military coop in Honduras without mentioning the Honduran constitution, or talking point about "due process" for civil crimes.... It just makes the Guardian as bad as FOX news.
Reading the Guradian is like reading creation science.
Posted by glen matlock | July 30, 2009 01:20 PM
I agree, it shouldn't be a civil issue at all, go before the judge, if you say you are a citizen then you get held over and things get worked out. If you are not a citizen you get deported with a conviction record, if found in USA again jail time. It might cost some money starting off but in the long run it will be a winner.
...and Sarah, we both know the Bay Guardian has never cared about the wise use of tax payer dollars unless it was political. As in the various battleships aircraft carriers and free museums that could come to the city.
And again, California democrats have transfered as much as they can to civil infractions so that a person doesn't get to see a judge. This red herring of "due process" is a joke, I would bet that we could go back and the Guardian was cheerleading the whole way in the 90's to move things over to civil infractions.
Sarah, you Guardian employee true believers should just say what you want. It may dupe some weak minded readers if you spout about Mumia being innocent, or writing whole columns about the military coop in Honduras without mentioning the Honduran constitution, or talking point about "due process" for civil crimes.... It just makes the Guardian as bad as FOX news.
Reading the Guradian is like reading creation science.
Posted by glen matlock | July 30, 2009 01:31 PM