MUNI bus driver Charles Washington says it was luck that won his family a reprieve from a federal deportation order. His Australian bride Tracey, who he married in Reno last April, and her 13-year-old son were served deportation orders after the boy got into a schoolyard fight and a police officer wrote him up with three felony charges. Under the city's current policy, felony charges against undocumented youth triggers an immediate referral to ICE before the youth can prove their innocence.
Charles and Tracey Washington hug outside a hearing on the city's policy towards immigrant youth. After the hearing, the juvenile probation department dropped language from its policy that advocates say could lead to racial profiling, but JPD Chief William Sifferman said the department cann't allow kids due process for fear of being accused of harboring and transporting aliens.
Washington's family won a reprieve after the media learned of their plight, an outcome Charles puts down to luck, not evidence that the system is working. He believes the nightmare his family is going through proves that the city's policy towards immigrant youth isn't working. And he wants those responsible for setting that policy to take responsibility and fix what's broken, not pass the buck by trying to hide behind federal laws they claim prevent them from fixing their own policy.
"The problem with the policy is that is doesn't allow for due process," Washington said during a March 4 hearing on the city's policy which Mayor Gavin Newsom ordered in 2008."The policy is based upon the original charges that a police officer made, a field officer who has to make a quick decison based upon a couple of known facts," Washington said. "Kids get treated as if they are guilty before they are proven innocent. There has to be a better way for the system to work."
Washington doesn't blame the city's police or probation officers for his stepson getting referred to the feds before he could prove he was innocent of felony-level charges.
Gabe Calvillo, president of the city's probation officers union, congratulated the Washington family on their reprieve, but repeated concerns that giving kids their day in court would put his members at risk.
And Washington does not blame city workers for the fact that federal immigration agents used his stepson as bait to get his wife to come in to their Sansome Street office where they handed her and her son deportation orders and slapped an electronic monitoring device on her ankle--a device she is still wearing to this day.
Tracey Washington demonstrates the device that the feds are forcing her to wear, making her feel like a "murderer," even though the couple say federal contractors gave them misinformation about when to apply for a green card, after she got married to Charles Washington while she and her two sons were here on a visa waiver.
As a city worker, Washington gets that these city workers were simply following orders. But as a husband, father and US citizen who is still fighting to keep his family intact, he believes that those responsible for the policy that led to this nightmarish sequence of events are hiding behind claims that their hands are tied by federal law. And he wants them to get off their hands and back to the drawing board, so other families don't have to go through what his family just experienced.
And unlike many families that feel they were unnecessarily ripped apart by the city's policy towards immigrant kids, Washington can articulate his concerns without fear of being deported himself.
"It's unbelievable how any family could have been put in that position," Washington said, recalling how his son landed in ICE’s hands, after a SFPD officer wrote him up for three felony charges, following a schoolyard fight over 46 cents.
When an SFPD officer charges a juvenile with a felony, juvenile probation is required to refer the kid to US Immigration and Customs Enforcement (ICE), if they suspect the youth is here without legal documentation.
Once Washington's stepson was referred to ICE, under a policy that Mayor Gavin Newsom ordered in 2008, the feds ordered him and his mother deported, without waiting to see if local courts actually find the boy guilty of any felony charges.
It was only when Washington went public with his family's nightmare and the media started making calls that ICE backed off.
But while it was the city's flawed policy that landed the Washingtons in this dilemma, the Mayor's Office did not offer to try and help. Instead, the Mayor's office claimed that their case proves that Newsom's policy is "not draconian." (You can read Newsom's full statement at the end of this post.)
"The Mayor's Office could have contacted me, tracked me down," Washington said. "But they just sat back and waited to jump on the band wagon, whichever way it went."
Mayoral spokesperson Tony Winnicker said the Mayor's Office was sympathetic to the family's plight but could see no reason to get involved in what he described as "a federal immigration matter."
But Washington notes that it was Newsom's policy that led to his stepson being referred to ICE, and the feds would have deported his family this week, if they hadn't gone public with their case,a step most immigrant families are afraid to take.
"The bottom line is that we got lucky,” Washington said. “How many families wouldn’t know what to do in this situation? When I spoke at the press conference at the Asian Law Caucus, I didn’t know what to do either. What if the Asian Law Caucus had been too busy, or the media hadn’t come to the press conference? Does everybody have to contact a lawyer. Our story shows that the system failed, and that it was luck that saved us."
While folks are acting as if the Washingtons' problems are over, the family still faces huge financial and legal challenges.
"For the time being, we’ve had a huge burden lifted off of us, but the next huge problem is that we are bing requested to have one-way plane tickets ready for the first part of April, though we are not being asked to leave now until May 4, that’s several thousand dollars that we have to lose," Washington said, noting that it will cost over $4,000 to apply for green cards.
“Meanwhile, It looks like everyone wants to point the finger at someone else instead of focusing on the fact that there is a problem."
Washington made his comments after a hearing that Sup. David Campos called to determine why the Juvenile Probation department hasn't implemented an amendment that Campos introduced in 2009 to address the Catch 22 situation that's hidden within Newsom's current policy and that ensnared the Washingtons' kid.
Campos' amendment instructed probation officers to wait until kids have had their day in court before referring them to ICE. But Mayor Newsom said he will ignore the amendment, and JPD Chief Sifferman has refused to implement it.
Either way, Campos' March 4 hearing offered a rare insight into the, some would say, dysfunctional dynamics within the city's juvenile justice department since it came under the microscope of US Attorney Joe Russoniello in 2008.
A Bush appointee, Russoniello has been ideologically opposed to the concept of sanctuary ever since the city enacted its City of Refuge ordinance in the 1980s, when he was first US Attorney for Northern California.
After Kevin Ryan was fired as US Attorney in 2006 and hired as Newsom's director of criminal justice in 2007, Russoniello resumed his post as top federal prosecutor, a position of power that let him launch a federal Grand Jury investigation in 2008 to determine if JPD's former practices violated federal law.
Ryan has since resigned from the Mayor's Office, and the Obama adminstration is vetting Russoniello's replacement, but the City claims it can't give immigrant kids their day in court for fear of federal retaliation. And some believe the unresolved tension between the city's sanctuary policy and the federal immigration laws will continue, unless national immigration reform occurs.
Juvenile Probation Department Chief William Sifferman said today that his department is eliminating language from its juvenile immigrant policy that could be an invitation to racial profiling.
JPD Chief William Sifferman told Campos that his department looked into Campos' amendment, which directs JPD to modify its policies and practices to the "extent permitted by federal law"'and concluded that it cannot modify them.
Sifferman recalled what happened when JPD used to return immigrant youth to their country of origin or place them in group homes, with no notification to ICE.
“Many of these youth were arrested for selling crack cocaine in the Tenderloin, were placed in group homes, ran away, were rearrested, selling drugs again," Sifferman testified.
He recalled how JPD officers were interrogated and threatened with arrest by federal agents who intercepted them at Houston airport as they were accompanying minors to Honduras. And that Russoniello subsequently convened a Grand Jury to investigate JPD's actions.
“That investigation continues to this day," Sifferman said. "The department’s current policy was adpoted becoasue of these concerns.”
"Until a court rules otherwise, the department must conclude that [federal] law would not allow the city to change its policy,” Sifferman said.
He said probation officers are trained not to directly question juveniles or their parents about their immigration status. And hee noted “a marked reduction" in the number of unaccompanied Honduran minors who have been arrested for selling crack cocaine.
“We believe our policy has significantly reversed a 15-year trend in the city’s history,” he said.
Sifferman said he did not receive Campos' request for time estimate information until 48 hours before the March 4 hearing, though Campos said he made his request weeks ago.
But he offered some statistics, including the fact that "since July 2008, JPD has released 107 unduplicated youth to ICE, 125 times."
"This means that 17 were referred to ICE twice, that they returned to country of origin, then reoffended," Sifferman explained.
He also noted that 92 percent of the youth are released to ICE after a felony finding.
“Only a small number are released to ICE without having determined if they had committed a felony," Sifferman said.
The monthly average of kids referred to ICE for the first four months of the city's new policy was ten, Sifferman said.
"And for the past 16 months, it's been five," he said. “We attribute this decline to undocumented Honduran youth no longer returning to the Tenderloin to sell crack with the same frequency.”
But he claimed that while there has been a reduction in releases to ICE, there had been no measurable decline in probation officer’s case or work load.
'They continue to supervise kids who have not been referred to ICE," he said.
“We have dedicated none of our resources to working with ICE," he added.
Contact with ICE is limited to fax transmissions, follow-up phone calls, and follow-up responses, Sifferman said.
"Probation officers do not arrest or detain youth based on their undocumented status nor do they assist in taking youth into ICE custody," Sifferman said. "We must always recognize the public safety impliations of our policy."
Asked what kind of resources JPD spends on this contact, Sifferman said, “De minimus.”
Pressed for more details, Sifferman said, “It’s difficult to estimate given that our staffing level functions are ministerial—a fax being sent a record placed in a file, a phone call about a potential release date. We haven’t done a time study.”
Campos noted that unlike JPD's former policy, the amendment he enacted last fall does not call for prior policing and actual transport of youth across the country. But Sifferman countered that if youth are released back into the community, JPD could be aked to transport them "to various locales.”
Campos questioned Sifferman as to the origin of language in Newsom's current policy that immigrant advocates believe could lead to racial profiling (language that, as the Guardian learned today, has now been deleted from the policy).
"In determining whether there is reasonable suspicion that youth is undocumented, one of the criteria listed in the policy says, 'presence of undocumented persons, ' but how would you know when a person is undocumented?" Campos asked.
“There could be information in the arresting report describing the conditions," Sifferman suggested.
"How did you decide to include this language in the policy?" Campos asked.
“It was based on research and advice we received from the City Attorney’s office," Sifferman said. "The entire policy is based on review and approval of the City Attorney’s office.”
"Can you see how something as open-ended as this could lead to racial profiling?" Campos asked.
‘It could, it requires vigilant oversight, if that criterion was taken alone, we’d have a problem wth that," Sifferman said.
Sup. Eric Mar said he was "very upset," that Sifferman did not have the cost estimates available.
Mar also voiced concerns that the policy sounded "like a justification for racial profiling.”
“I really respect you, but it sure sounds like you're flying in the face of San Francicso values when you are not implementing a policy to protect due process," Mar said.
“I disagree that we have been intentionally stalling," said Sifferman, who has been hit with budget cuts and staffing reductions in the past couple of years like other department heads.
Campos took issue with Sifferman citing Title 8, Section 1373 of the US code as justification for not implementing his policy amendment.
That section of the US code states that, "Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. "
“Can you point to a section of the federal law that requires you to report?” Campos said
“No, I can’t," Sifferman said.
But Sifferman subsequently noted that there is a prohibition against "transporting and harboring any person known to be undocumented," a position that leaves JPD officers feeling vulnerable given that the department has received three federal Granf Jury subpoenas related to JPD's previous policy towards juveniles.
During public comment, UC Davis Law Professor Bill Ong Hing addressed the fact that a bunch of misinformation continues to swirl around the city's immigrant juvenile policy.
"I would encourage the Board, Chief Sifferman, the Mayor’s Office and City Attorney’s office to sit down together," Hing said. "A lot of misinformation is floating around."
Hing noted that there is nothing in the Campos amendment that prohibits reporting kids to ICE.
"But you do not have to volunteer information to them, if it's not required," Hing said.
“The vast majority of jurisdictions don’t contact ICE [before kids have day in court], they recognize that’s not good policing, " Hing continued. "Under the rules of federalism, there is nothing that prohibits this ordinance."
"And there has never been a prosecution of a city worker [for following a city's sanctuary policy], and [a prosecution of a city worker for that] wouldn't be authorized by the Obama admininstration," Hing claimed.
He also said that a confidential memo that Mayor Newsom leaked to the Chronicle was 'laughable".
"It exagerrates the likelihood of a successfully overruling the sanctuary ordinance," Hing said.
Hing concluded that City Attorney approved language in Newsom's current policy, "is a complete inviation for racial profiling."
City Attorney spokesperson Matt Dorsey responded forcefully to these accusations.
"Racial profiling is illegal, and something we take very seriously," Dorsey wrote in an email." Part of the City Attorney's duty is to advise against illegal conduct. If a client department informs us that a policy could risk illegality, we will work with our clients to make sure laws aren't broken, and that no one's rights are violated. That's a job lawyers do every day. And that's especially true here, where the matter involves litigation, threats of litigation, and a federal criminal investigation."
And today, JPD decided to eliminate the language that was triggering racial profiling concerns.
Meanwhile, mayoral spokesperson Tony Winnicker noted that of the 125 reports to ICE since July 2008, 97 percent were for felony arrests, and the other 3 percent were "misdemeanors with priors."
Winnicker also emailed a statement from Newsom that reads as follows:
“I have long supported our sanctuary policy and a range of policies and programs designed to assist our immigrant community. I believe San Francisco continues to be an international leader with our efforts to protect immigrants in our community. However, the sanctuary ordinance as originally conceived and adopted was designed to protect all residents of our city, not as a shield for felons and criminal behavior. I will not put City staff, our sanctuary city policy and thousands of residents at risk to shield felony criminal behavior by a few. Immigration and Customs enforcement is a federal responsibility. San Francisco cannot be the arbiter of immigration cases that take place within the City. That’s why many other counties in California have a similar policy of reporting suspected juvenile felons to Immigration and Customs Enforcement at the booking stage. The recent example of the Washington family validates that our current policy is appropriate. Juvenile Probation officials report undocumented felony arrests to Immigration & Customs Enforcement, and Immigration & Customs Enforcement officials determine the appropriate response. In this case, once President Obama’s Immigration and Customs Enforcement office became aware of the exceptional circumstances around the case, they took commendable action to ensure that the young boy and his family were given time to resolve their residency status.San Francisco’s Sanctuary Ordinance continues to strike the appropriate balance between offering a welcoming hand to our immigrant community and protecting the public safety of law-abiding residents of our City.”
That's a fine statement, and I'm sure the mayor cares about youth, whatever their nationality and immigration status. But immigrant youth still face a Catch 22 trap within his policy that has led kids who haven't committed felonies being referred to ICE for deporation. The question now becomes, can a miracle happen? Will everyone involved--at the city and federal level--sit down and hash out an equitable solution? Will heads of other city departments acknowledge their role in this process or will Sifferman be hung out to dry all on his lonesome? And will a bunch more kids get thrown under the bus before we as a nation find our way towards a saner and more equitable immigration process? Stay tuned.