An Immigrant Haven, at a Crossroads

By Sandra Hernandez

Daily Journal Staff Writer

For two decades San Francisco embraced a generous policy toward undocumented aliens, making it a sanctuary city that kept police from enforcing immigration laws.

That all changed last year after a Salvadoran immigrant, who was allegedly in the country illegally, was charged with shooting a father and his two sons to death.

Edwin Ramos, 22, had a record for assaults he committed as a teenager but was never turned over to immigration authorities.

San Francisco Mayor Gavin Newsom, who was then seeking the Democratic nomination for governor, decided to get tough in May.

He began requiring all probation officers to notify immigration officials whenever they arrested a juvenile for a felony and suspected the minor of being in the U.S. illegally. The notification was required regardless of whether the juvenile had been charged or convicted.

Earlier this month, the San Francisco Board of Supervisors responded to Newsom by adopting a new ordinance that requires officials to only report those minors convicted of a felony.

Since then, the mayor and the board have each vowed to continue with their own conflicting policies.

Newsom's office has said the board's policy is at odds with federal law.

"There is a high chance that the entire sanctuary policy will be declared invalid because it restricts when someone can notify immigration," said Kevin Ryan, a former U.S. attorney who helped draft the mayor's plan. Ryan announced last week he is stepping down as the mayor's crime czar.

The board, however, countered that law enforcement officers are not barred from notifying immigration officials, and it's the mayor's policy - not theirs - that is troubling because it undermines the city's sanctuary policy that bars the use of city funds for immigration enforcement.

Observers said San Francisco's policy may be the latest casualty of election year political wars.

"This all happened against the backdrop of gubernatorial politics," said Jaime Regalado, director of the Edmund G. Brown Institute of Public Affairs at Cal State Los Angeles.

Newsom, whose name had become synonymous with his support for gay marriage, needed to find a way to appeal to moderate voters while appearing tough on crime, Regalado said.

"He didn't want to be 'Willie Hortoned,'" Regalado said, referring to a convicted murderer who killed again while he was freed from prison on a furlough. Political ads blamed Massachusetts Gov. Michael Dukakis for Horton's furlough, helping to derail the governor's 1988 run for the presidency.

Newsom tried to broaden his appeal, in part, by changing San Francisco's sanctuary measure, Regalado said.

Even critics of the sanctuary policy agree politics helped shape Newsom's stance.

"Politicians only see the light when they feel the heat," said Mark Krikorian, of the Center for Immigration Studies, a Washington group that supports restricting all immigration.

Newsom dropped out of the governor's race in October, but his policy on juveniles has survived.

Civil and immigrant rights groups said San Francisco is now left with one of the toughest policies in the nation.

"No other city has pursued such a policy against juveniles," said Angela F. Chan, an attorney with the Asian Law Caucus, a group that opposes Newsom's plan.

UC Davis law professor Bill O. Hing said Newsom has "de facto adopted" a controversial federal program that allows state and local government to enforce immigration laws.

Created in 1996 as part of the federal immigration reform package, these agreements known as 287(g) allow local and state authorities to enforce immigration laws.

Hing said most federal agreements do not apply to juveniles.

Watchdog groups have attacked those agreements, arguing such federal accords often result in racial profiling by police, said Judy Greene of Justice Strategies, a New York based nonprofit research group studies humane and cost effective approaches to criminal justice and immigration enforcement.

Newsom does not have such an agreement with federal officials.

Under Newsom's plan, however, probation officers are allowed to interview those minors "suspected of violating" civil immigration laws.

Probation officers can ask whether the juvenile was in the "presence of undocumented persons" when arrested, how the minor entered the U.S. and if the minor can prove they are legally in the U.S., according to the city policy.

A spokeswoman for U.S. Immigration and Customs Enforcement said in an e-mail that San Francisco has turned over 154 minors to immigration officials since June 2008.

Newsom's spokesman Nathan Ballard said the mayor's plan complies with federal law.

"In San Francisco, our policy is to treat minors the same as adults when it comes to this issue," said Ballard, who has also announced plans to resign in February 2010.

However, San Francisco County Sheriff Michael Hennessey said adults are handled differently.

Adults accused of a felony are only asked their place of birth, Hennessey said. Foreign born adults are then referred to immigration officials.

"We don't ask about their immigration status," Hennessey said.

The city's lack of an agreement with federal immigration authorities has prompted some local officials to say the mayor has overstepped his authority.

"The probation department has become a de facto arm of [immigration]," said County Supervisor David Campos, who authored the board's ordinance.

"From a public policy standpoint, San Francisco has never, as a city, wanted to become an arm of immigration," he said. "And if that is what we are doing, that is something the board of supervisors should know."

Like Campos, civil and immigrant rights groups said Newsom's plan could spur lawsuits.

Supporters of stricter enforcement, however, said federal courts have not weighed in on the issue.

"Nothing has been litigated high enough to really render a final opinion," said Krikorian, who opposes sanctuary laws.

During the 1990s, the Clinton administration said local authorities could only enforce criminal violations. In 2002, the Bush administration rescinded the policy in a memo written by Jay S. Bybee, then an attorney in the Office of Legal Counsel. Bybee wrote police could enforce minor immigration violations such as being in the U.S. without permission.

In 2003, Bush appointed Bybee to the 9th U.S. Circuit Court of Appeals. Nearly half of that court's cases involve immigration-related appeals.

Newsom's policy is unique for a city with a large immigrant community.

Juveniles arrested by the Los Angeles Police Department or the Los Angeles County Sheriffs Department are turned over to the county's probation department.

"The residency status of the minor is not asked about during the preliminary stages," said Kerri Webb, a spokeswoman for the Los Angeles Department of Probation Department. "It may come out during the investigation of the alleged crime, but we do not inquire as a matter of policy."

San Francisco's immigration battle has attracted the attention of the U.S. attorney's office.

City officials hired criminal defense attorneys after learning U.S. Attorney James Russoniello had convened a federal grand jury investigation into the city's immigration policy.

"We were subpoenaed," said Matt Dorsey, a spokesman for City Attorney Dennis Herrera.

Last week, Herrera asked the U.S. attorney for assurances he would not prosecute city employees who follow the board's policy.

Russoniello could not be reached for comment, but he recently told the San Francisco Examiner that he will provide no assurances.

U.S. Department of Justice officials said the agency has never sued a city or county over its sanctuary policies, but declined comment on the grand jury probe.

Russoniello has come under fire in the past. He was sued in 1982, after he launched an investigation into voter fraud that focused on foreign born voters who requested bilingual ballots.

The board's new ordinance will become law next month and the probation department has until January to implement it.

"If the sanctuary policy can't be preserved in San Francisco, its doubtful it can be preserved anywhere else," Campos said.

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