Do we want to risk deporting innocent kids and seeing them die trying to rejoin their families?
Sup. David Campos' proposal to amend San Francisco's sanctuary policy so that the city guarantees due process to juvenile immigrants heads for a full vote of the board next week with the support of a veto-proof majority of supervisors.
Board President David Chiu and Sups. John Avalos, Chris Daly, Bevan Dufty, Eric Mar, Sophie Maxwell, and Ross Mirkarimi have signed on as cosponsors of the amendment, which also has the support of a broad coalition of civil and immigrants' rights organizations.
But with the mayor opposed to the bill and the daily newspapers agitating against reform, it's important to remember what's really at stake here.
As a team of civil rights experts notes, the Campos bill "will ensure that families are not torn apart because a youth is mistakenly referred for deportation and will encourage cooperation between law enforcement and immigrant communities by reestablishing a relationship based on trust, therefore increasing public safety."
Campos, who came to this country as an undocumented youth from Guatemala and represents San Francisco's heavily immigrant Mission District, says his proposal is a balanced solution to the draconian policy Newsom ordered last summer, without public input, the day after the mayor launched his 2010 gubernatorial bid.
When Campos introduced his amendment this summer, after months of public conversations with law enforcement agencies and the immigrant community, Newsom responded by leaking a confidential legal memo that outlined possible challenges to the proposal.
Angered but undaunted, a group of civil rights organizations responded by issuing their own brief explaining why Campos' proposal is legally tenable and defensible.
As Angie Junck of the Immigrant Legal Resources Center, Robert Rubin of the Lawyer's Committee for Civil Rights, Julia Mass of the American Civil Liberties Union of Northern California, professor Bill Ong Hing of UC Davis Law School, and Angela Chan of the Asian Law Caucus explained, Campos' proposal "will allow immigrant youths to have their day in court and be heard by an impartial judge, ensuring due process is upheld for all of San Francisco's youth."
They argue that Campos' legislation seeks to "lessen the risk that the city will be liable for racial profiling, unlawful detention, and mistaken referrals of U.S. citizens and lawful immigrants for deportation while bringing the city's juvenile probation practices into compliance with state confidentiality laws for youth."
And as they point out, Campos' proposal won't prevent youths who have been found by a court to have committed a felony from being referred to ICE.
"The sanctuary ordinance has stood strong for 20 years, and the proposed amendment strengthens the ordinance by taking steps to bring the city's practices more into compliance with state juvenile justice law," the brief states. "The legislation is a measured step in the right direction that will help restore accountability and fairness in the city's treatment of immigrant youth."
Or as Campos put it: "It's something we drafted very carefully in close consultation with the City Attorney's Office."
Campos' amendment seeks to shift the point at which immigrant kids get referred to ICE agents for possible deportation. Newsom's policy allows the police to refer kids to ICE the moment they're arrested. That means someone who turns out to be innocent and was arrested in error can still be deported. Campos wants the cops to wait until the felony charge is upheld in juvenile court.
Since July 2008, when Newsom ordered the city's current policy shift, 160 youths have been referred to ICE, increasing the risk they will be sent to detention facilities across the country, far from their families, without access to immigration legal services, based on accusations and racial profiling.
Abigail Trillin, staff attorney with the Legal Services for Children, told us that the Newsom policy makes San Francisco bedfellows with Texas and Orange County.
"A bunch of our kids go to Yolo County and Oregon, a lot to Los Angeles, others to Miami, Virginia, and Indiana, and some have already been deported," Trillin said.
Trillin noted that Newsom's policy is destroying families by allowing innocent kids to be reported for deportation without the basic right to due process often for minor offenses. She has already seen youth who are documented or innocent erroneously referred to ICE by juvenile probation officers, who often lack expertise in immigration law.
She also fears this miscarriage of justice could result in abuse and even death especially if kids try to return to their homes and families by crossing the border, which has became increasingly militarized and perilous in the aftermath of the Bush administration's decision to spend billions to build a fence along the border.
Last week, the battle for juvenile justice took a fresh twist locally when Newsom's newly appointed Police Chief George Gascón said he hoped for a compromise involving third party review by the District Attorney's Office.
"I fully understand the concerns Campos brings to the table," Gascón said, referring to his previous job as chief of police in Mesa, Ariz., where he saw the anti-immigrant excesses of Maricopa County sheriff Joe Arpaio.
"I have the benefit of seeing the other side, where you have police agencies aggressively engaged in immigration enforcement, where people that were frankly not engaged in any criminal activity other than that of being here without authority, are being deported," Gascón said. He noted that being here without papers often is not a crime; it's just an administrative violation.
"I've seen very young people, people that basically came to this country when they were three or four years old and are staying clean and going to school, get stopped for a traffic violation at age 17 or 18, and now all of a sudden they're getting deported to a country where they have no roots," he said.
But the chief remains convinced that the criminal justice system needs to be able to use all legally available tools to deal with violent criminal juveniles.
"I'm not saying the district attorney needs to make the reporting. The triggering event could be the determination to file the case," Gascón said. "Frankly, I wish I'd been here a year earlier to deal with this issue," he added, noting that federal immigration hearings are "a kangaroo court."
"It's not a beyond-reasonable-doubt standard for people to get deported," he said.
"The other side of the coin is that this would be putting people in situations where they could be federally indicted for violations of law. And you also have problems at state," he continued, noting that two federal grand juries are currently reviewing the behavior of the Juvenile Probation Department.
Campos, a lawyer, appreciates that the new police chief is "genuinely trying to see if there is something he can do to resolve the situation. I believe if he had been in place where this discussion was going on a year ago, the mayor would have received better advice."
"The chief's comments reflect that what is happening here is pretty extreme," Campos added. "I recognize that changing the reporting process to a third party would definitely be better than what we have now, where the final decision rests with a police officer. But while it's better, it's not sufficient. Due process necessarily entails giving people their day in court, and letting a judge decide what actually happens."
Sup. Chiu, a former prosecutor, also said he appreciates Gascón's resolution attempt. "But the point of our system is that once you are arrested and charged, there are due process rights so you can respond to those charges."
Sup. Dufty, a mayoral candidate, said he expects that when the board passes laws, those laws will be implemented by Newsom. "As CEO of San Francisco, he has to comply with all legislation, including local laws the legislative body passes that he may not like," Dufty said.
"My mother was born in Czechoslovakia and was stateless when I was a boy," he added. "She had to register every year as an alien, so this is very visceral for me. If we are to be a sanctuary city, it's because everyone has due process. It's denying people's humanity and dignity and creating a two-tiered system for justice."
But mayoral spokesperson Nathan Ballard continued to assert that Newsom's current policy is balanced. "While he remains open to argument, the mayor believes the current policy strikes the right balance between protecting public safety and safeguarding the rights of accused criminals," Ballard, who had not replied to the Guardian's questions as of press time, told the Examiner last week.
But Trillin says she can't stand to hear Ballard falsely claim, one more time, that the city is going to shield criminals. "Ballard keeps repeating a completely false position, because Newsom's actual position is morally indefensible," Trillin said. "You can't have the mayor publicly say that young people don't deserve due process, so you have to make up stuff like this instead."