Newsom leaks legal document to counter strong support for pro-immigrant legislation
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The week started off in celebratory mood for members of the local immigrant rights community who attended an Aug. 18 rally outside City Hall to support legislation by Sup. David Campos that would extend due process rights to immigrant youth. And it ended, as this issue has a way of triggering, in controversy and division.
"Si se puede," chanted the crowd, hoping that "yes, we can" reform city policies on deporting undocumented young people accused of crimes before their trials. Dozens of immigrant and civil rights leaders representing 70 community groups made powerful speeches, buoyed by the knowledge that seven other supervisors John Avalos, Chris Daly, Bevan Dufty, Eric Mar, Sophie Maxwell, Ross Mirkarimi, and Board President David Chiu support the proposal, giving Campos the eight votes needed to override a mayoral veto of his proposed legislation.
Campos, an attorney who came to the United States as an undocumented teenager from Guatemala, told the crowd that he hopes to ensure that undocumented juveniles can only be referred to federal authorities for deportation after a court finds that they have committed a felony.
The Campos proposal, which was introduced during a week-long effort to revive immigration reform efforts at the federal level, seeks to amend a policy shift that the Mayor's Office rammed through last summer after somebody leaked confidential juvenile criminal records to the San Francisco Chronicle.
Those leaks revealed that city officials had been harboring adolescent crack dealers instead of referring them to Immigration and Customs Enforcement (ICE) for deportation. Within days, Mayor Gavin Newsom who had just announced his gubernatorial bid ordered a change in policy.
In the year since that shift took place, city officials have reported an estimated 180 to 190 youths to ICE. But immigrant rights advocates say Newsom has refused to meet with more than 70 local community organizations to hear their concerns about how the change in policy violates due process rights.
"I hope Newsom will look at this proposal and see it for what it is: a balanced and measured process grounded in the values of San Francisco," Campos told his supporters, noting that his proposal does not seek to revert to the city's original policy, under which no youths were referred to ICE, even when there was misconduct.
Instead, Campos' proposal seeks to reform the policy that Newsom ordered and the city's Juvenile Probation Department implemented last July without public debate. As Avalos observed at the Aug. 18 rally, "The policy that was introduced last year only produced a semblance of public safety. It caved in to the politics of intolerance. It was not in line with the city of St. Francis. A veto-proof majority has made sure this legislation passes. Young people deserve better."
But the next day, the mood in the immigrant community soured as they learned that the Mayor's Office had leaked to the Chronicle a confidential memo from the City Attorney's Office about the legal vulnerabilities of Campos' proposed legislation. The paper ran a long, high-profile story on the memo along with critical quotes from Newsom, Police Chief George Gascón, and U.S. Attorney Joseph Russoniello.
As of press time, the Guardian had not been furnished a copy of the leaked memo. But it reportedly warns that passage of Campos' legislation could jeopardize the city's defense against the Bologna family, who claim that the city's policy allegedly allowed Edwin Ramos, now 22, to kill Tony Bologna and his two sons last year. It also reportedly cautions that the Campos proposal could affect city officials who are being probed by a federal grand jury on whether the city's previous policy violated federal law.
Missing from the Chronicle's coverage was any mention that the Ramos case is stalled, with Ramos claiming that he drove the car but did not fire the fatal rounds in the Bolognas triple slaying, and that the shooter has gone underground and is believed to have fled the country.
Nor did the Chronicle note that a committee vetting potential nominees for U.S. Attorney for Northern California has forwarded three names for Sen. Barbara Boxer to consider Melinda Haag, Matthew Jacobs, and Kathryn Ruemmler. Russoniello, who launched this grand jury investigation and has been openly hostile to San Francisco's sanctuary city policies, could soon be replaced.
And the Chronicle only dedicated one sentence to another legal memo a 20-page brief prepared by the American Civil Liberties Union, the Asian Law Center, the Immigrant Legal Resource Center, the Lawyer's Committee for Civil Rights, Legal Services for Children, and the San Francisco Immigrant Rights Defense Committee. Their memo was prepared to support Campos' contention that Newsom's new policy exposes the city to lawsuits, undermines confidence in the police, subverts core progressive values, ignores differences between adults and minors, and violates the city charter.
"In its haste to respond to media stories, the Mayor's Office and JPD acted precipitously, usurping the role of the Juvenile Probation Commission under the City Charter and failed to abide by the measured approach embodied in the City of Refuge Ordinance," contends the civil rights memo.
The authors of this civil rights memo note that they repeatedly shared their concerns with the Mayor' Office, JPD, and the City Attorney's Office about the new policy which, they observe, "was crafted behind closed doors and hastily adopted in 2008 without a public hearing."
"Yet the Mayor's Office and JPD have rejected our invitation to work collaboratively with community partners to ensure that the youth are not referred for deportation based on a mere accusation or an unfounded suspicion, and to protect the city from exposure to liability for erroneously referring a youth who is actually documented for deportation," the civil rights memo states.
The civil rights memo recommends that youths not be referred to ICE until five conditions are met: the youth has been charged with a felony; the youth's felony delinquency petition has been sustained; the youth has undergone immigration legal screening by an immigration attorney; JPD has comprehensive policies to minimize the risk that the youth will be erroneously referred to ICE because of language barriers; and the probation officer makes a recommendation to the court and the court agrees that ICE should be notified.
Reached shortly after the Mayor's Office leaked the City Attorney's confidential memo, Campos expressed shock at the manner in which it was released. "It's an elected official's obligation to protect the city, and elected officials also have a fiduciary duty," Campos said.
Confident that his legislation is legal, Campos observed that "legal challenges are a reality any time you try to do anything about immigration.
"But it's interesting that we are talking about fear of being sued, when San Francisco has a long and proud history of facing legal challenges when we believe that we are correct," he added, pointing to the city's willingness to fight for same-sex marriage, domestic partner benefits, and universal health care.
"The very same people who say that they are afraid of being sued here had no problem defending those issues," Campos said. "Perhaps it is not so popular to defend the right of an undocumented child as those other issues. But that does not negate the fact that we are right on this issue. We should stand up for what is right and we should not be afraid of litigation."
Avalos was equally appalled by this seemingly unethical leak by the Mayor's Office. "I thought we just had something to celebrate, having a rally to support David Campos' legislation and now we have memos being leaked," Avalos said. "It's unfeeling at best. By leaking a confidential memo that contains privileged attorney-client information, you are undermining the city's legal position on an issue. And obviously you are putting your personal career interests over the city. If the mayor's political position is more important than the welfare of the city, that's pretty worrying to the Board of Supervisors."
The City Attorney's Office responded to the leak by issuing another memo, this time outlining the legal and fiscal perils of leaking attorney-client privileged materials. "Confidential legal advice is not intended to be fodder in political disputes," City Attorney Dennis Herrera stated, noting that he was "not aware of a city official or employee who has acknowledged responsibility for the disclosure."
And, initially, no one in the Mayor's Office took responsibility for the leak.
"It is my understanding that the Chronicle got it from a confidential source," Newsom Press Secretary Nathan Ballard told the Guardian, claiming that "the Campos bill paints a target on us and puts our entire sanctuary city policy at risk."
But by week's end, pressure was building on Newsom to reveal whodunit.
"While I welcome the issuance of the City Attorney's legal guidance reminding the Mayor's Office and the Board of Supervisors of their obligation to keep attorney-client privileged information confidential, a thorough investigation is needed to hold those responsible accountable," Avalos stated, asking the City Attorney's Office and the Ethics Commission to get involved.
Shortly after Avalos asked for an investigation, I covered the swearing-in ceremony for Gascón at City Hall, during which Gascón told the assembled that "safety without social justice is not safety."
Struck by the chief's words, I asked the mayor if he was concerned about the apparent breach of security that occurred in his office when the memo was leaked. Newsom responded angrily, noting that clients, in an attorney-client privilege arrangement, can release memos if they so choose.
"So, you did leak the memo to the Chronicle?" I asked.
"I handed it," Newsom answered, pausing to look at Ballard, "to some of my people." Chronicle reporter Heather Knight was also there and wrote in a story published the next day that Newsom "authorized the leak."
When I asked if leaking the memo was a preemptive strike against the Campos legislation, the mayor went into a rant about how Campos' proposal could open the city to the threat of lawsuits and the loss of the entire sanctuary ordinance.
But concerns about lawsuits didn't stop Newsom from pushing for same-sex marriage in 2004. When I asked Newsom to explain this disparity, he dismissed my question and Ballard announced it was time to move along.
Angela Chan, staff attorney with the Asian Law Caucus, challenged Newsom's claim that Campos' legislation puts the city's entire sanctuary ordinance at risk, telling the Guardian, "It's a false ultimatum."