Sorry, Nate, but you're wrong


It’s too bad that Mayor Gavin Newsom’s communications director Nathan Ballard doesn’t seem to understand due process. At least not from an immigrant’s perspective.

I don’t say this lightly.

Ballard’s biography states that he is a former deputy city attorney, with a law degree from the University of California, Hastings. Whereas I’m just a lowly immigrant, who is under the impression that, in the United States, folks are assumed innocent until proven guilty.

But then along comes Ballard and tells me, yesterday, that I’m "wrong” in claiming that referring juveniles to federal Immigration Custom and Enforcement (ICE)—which is happening in San Francisco to youths are merely suspected of committing a felony and of being undocumented—raises due process questions.

If you don’t believe me--and I don’t blame you if you don’t, because it is hard to believe that this is happening in San Francisco with its huge immigrant communities--read the transcript of our exchange, which took place following the DCCC’s March 25 passage of a resolution that commits San Francisco to due process for all.

Phelan: “Nathan, following up on last night's DCCC resolution in support of a Sanctuary City ordinance: Does the policy direction that Newsom ordered in 2008 guarantee due process for all?”

Ballard: “Yes. It was thoroughly vetted by the city attorney.”

Phelan: “I know the policy was vetted by the city attorney. But, as I understand it, juveniles are being referred to ICE without a hearing of any kind, which means, does it not, that due process is being denied?”

Ballard: “You're wrong. Referral to ICE alone does not give rise to due process issues.”

If that's not enough, check out the Examiner's Ken Garcia, whose only source appears to be Ballard, framing the DCCC’s resolution as “one that demonized Mayor Gavin Newsom” and the more watered-down version as “one that said legal protections should not extend to people who commit violent felonies."

But—and this really is the crux of the matter, folks—the problem with Newsom’s current policy is that it does not target folks who have been proven of committing a felony.

Instead, it targets folks suspected of, or charged with a felony.

This means that juveniles who has been wrongly apprehended or falsely charged will be referred to immigration authorities, even if they are completely innocent, or they are simply guilty of tagging a wall.

Abigail Trillin of Legal Services for Children reports that 100 juveniles have been referred to ICE since Newsom announced his new policy direction, and every one of them has been picked up by federal immigration authorities.

“Newsom’s change in policy gets you to the lowest possible exception of the sanctuary city ordinance, which is persons charged with a felony,” Trillin said, noting that this ICE referral happens, “not only before any juvenile court decision, but also before the cases go to the District Attorney’s Office.”

Trillin acknowledges that immediately after Newsom issued his 2008 shift in policy, a lot of unaccompanied kids, mostly from Honduras, got picked up.

“And most of them choose to be deported,” Trillin observed, referring to a group of Honduran teenagers who were charged with dealing crack and appeared to be mules for adult drug lords who have figured out ways to game the city’s system.

“But now we are seeing kids who grew up here since they were babies, don’t speak Spanish, and whose entire support system is here, being referred to ICE,” Trillin continued. “These kids are terrified of being deported, and while they may be temporarily reunited with their families, while they are going through deportation proceedings, they will eventually be deported.”

Trillin adds that many of these kids are categorized as, “unaccompanied minors,” even though they have families here, because their relatives are undocumented and therefore are not in a position to pick them up from juvenile hall.

“They don’t have a mom who can show up with papers,” Trillin said, noting that the kids are then transferred to federal detention facilities within 48 hours, and may end up in a locked facility in Yolo County.

Trillin believes the current system in San Francisco rewards racial profiling.

“If you have a system where you have to go through the courts before referring a juvenile to ICE, then it doesn’t reward you to profile these kids,” Trillin explained.

Observing that Mayor Gavin Newsom has said nothing publicly about the sanctuary city ordinance since last summer, when he declared his policy shift, shortly after announcing his gubernatorial run, Trillin says the mayor's silence has compounded fears that there is no longer is a sanctuary city policy in San Francisco.

Sup. David Campos, who came to the United States at age 14 as an undocumented immigrant from Guatemala, says his problem with the policy shift that Newsom ordered last summer is that it is not really doing what it claims.

“They are trying to keep people who are engaging in criminal activity from benefiting from our Sanctuary City policy, but that is not what this policy does,” Campos explained. “It does not target people who are engaging in criminal activity, but people who are accused of engaging in criminal activity.”

“So, we are saying,” added Campos, who was one of the 20 DCCC members who voted to recommit to the sanctuary ordinance and due process for all, “that we believe that [Newsom’s policy] does not provide due process. Due process, in my view, would require that before you report someone to ICE you make sure that there actually was some criminal activity.”

Campos adds that he believes most people would be surprised that we don’t provide everyone with due process.

“They assume that people are innocent until proven guilty," Campos said. " I don’t think anyone, except a judge and jury, should be in the position to decide a person’s guilt for themselves. An accusation is not proof. I’m sorry, but we still have a Constitution.”