As immigrant rights supporters at City Hall on Tuesday cheered “¡Sí, se puede!” or “Yes we can!” no one would have known that the legislation passed wasn’t everything they wanted. A unanimous vote by the Board of Supervisors to limit when undocumented immigrants can be held for an extra 48 hours failed to eliminate holds altogether.
“The fact that we passed this ordinance today sends a very clear message that people should not be afraid,” Supervisor David Campos of District 9 said in reference to undocumented immigrants who fear getting deported. When the measure passed, Campos high-fived the man who originally proposed it: Supervisor John Avalos of District 11.
Until Tuesday, police could hold undocumented immigrants for two days after they had posted bail or served their time. The holds are requested by U.S. Immigration and Customs Enforcement (ICE), which runs fingerprint searches to discover whether a suspect is undocumented and whether that person has already been arrested. The holds are part of the federal Secure Communities program to find and deport undocumented immigrants.
With the new legislation, law enforcement will be allowed to detain undocumented immigrants for an extra 48 hours if two conditions exist: the suspect has been convicted of a violent crime within the last seven years and the suspect is being charged with another violent crime such as homicide or sexual assault.
Legally, citizens or documented immigrants charged with the same felonies are not eligible to be held for extra time if they have been released by a judge.
Now in San Francisco, non-violent criminal histories won’t count if the suspect’s record has been expunged. Before holding someone for ICE, officers will also have to weigh other factors including rehab and the person’s ties to the community.
The original proposal from Supervisor Avalos called “Due Process for All,” had been to completely eliminate ICE holds in San Francisco. The changes to Avalos’s plan were made by District 6 Supervisor Jane Kim as a compromise between those who support ICE holds and those who didn’t want any at all.
“I already gritted my teeth a few weeks ago, knowing we were going to have to make some changes,” Avalos said after the hearing. “The political reality is that we were only going to be able to put forward a very strong measure that had some exceptions.”
Organizations like Mujeres Unidas y Activas, Asian Americans Advancing Justice and Asian Law Caucus fear that the narrow modifications to Avalos’s plan will continue to chill the community’s willingness to call the police for help, to report a crime or to serve as witness.
As it stands now, 70 percent of undocumented immigrants who are crime victims in the United States hesitate to contact law enforcement for fear of deportation, according to a report prepared for supervisors.
The exceptions are referred to as carve-outs.
Don Wilson, president of the San Francisco Deputy Sheriff’s Association, wrote a letter to the Board of Supervisors in support of carve-outs “as a matter of public safety.” He wrote, “No one is sought out, and no one is fingerprinted other than criminals processed into the county jail.”
In a study published this year by Transactional Records Access Clearinghouse (TRAC) at Syracuse University, almost half of the people detained by ICE holds in the 2012 fiscal year and the first four months of this fiscal year, had no recorded criminal offenses. The analysis shows that less than 15 percent of those held posed a serious threat.
“We have to have faith in our criminal justice system. It can’t be mixed with our immigration system if it is going to work properly,” said Ariana Gil Nafarrate, who works for Mujeres Unidas as an outreach coordinator.
She says ICE has other avenues to track down undocumented criminals and they don’t need the city to help deport people. “San Francisco has limited resources and ICE is very well-funded and they’re doing their job really well.”
More than 780 immigrants have been deported out of San Francisco since Secure Communities began in June of 2010, Chan said. According to Gil Nafarrate, the city spends roughly $100 each day an immigrant is held for ICE.
“I do not see any civil rights issues with holding [undocumented immigrants] for an extra 48 hours,” said Harmeet Dhillon, the chair of the San Francisco Republican Party and the vice chair of the California Republican Party. “Every single person who is in this country illegally is breaking the law every day.”
Dhillon does believe that there is a need for comprehensive immigration reform — not necessarily amnesty, but a better way to make the undocumented become citizens. “We’re creating an underclass that is being exploited.”
Although a proponent of small government, she said it is up to Congress and the White House to change immigration legislation and that San Francisco should not take on the responsibility.
“We’re not really taking on the responsibility of overhauling immigration, all we’re saying is that San Francisco’s limited resources should not be used to do ICE’s job,” said Gil Nafarrate.
Chan was satisfied with how narrowly-written Tuesday’s approved amendments were, but will be monitoring their implementation. Oversight written in the carve-outs will require a sheriff to perform an annual review and report every time they have chosen to hold an immigrant for ICE. Also written in the adjusted measure is an expiration date for the changes: three years — or before — if comprehensive immigration reform is implemented.
In the meantime, invested activists will celebrate their partial triumph before they get back to work. “The Constitution protects everybody,”said Gil Nafarrate. “It’s not about documented or undocumented.”