Supervisor David Campos said that Mayor Gavin Newsom’s refusal to enforce a proposal to relax the city’s policy on reporting undocumented juveniles to immigration means that “San Francisco is no longer a sanctuary city.”
“You would think San Francisco would never get to that point,” Campos said and pointed out that it is especially disappointing as it is happening on the eve of the 20th anniversary of San Francisco’s sanctuary city ordinance.
While the supervisor vowed to pursue steps to make the mayor comply with the expected approval of the proposal, Campos acknowledged that to work, the change in the sanctuary ordinance needs the city’s leaders to be on the same page. That is no longer the case.
On one side are the supervisors who have taken a veto-proof vote to change the 15-month-old policy of treating undocumented juvenile offenders the same as undocumented adults. The change requires officials to wait until after a felony charge is upheld to report an undocumented juvenile to immigration.
On the other side is Mayor Newsom, who favors maintaining the policy that treats undocumented juveniles the same as adults. His strongest support for this position is the federal civil law that prohibits state or local officials from restricting a public official from assisting immigration.
A July 2008 memo, drafted by the city attorney’s office when the policy of protecting undocumented juveniles was changed, said federal law does not compel the city to turn over information, “but the City possibly cannot penalize a City employee or official for turning over information.”
In this stand off, the city official willing to turn over information is the mayor.
Campos’s remarks Thursday came in response to questions about the mayor’s assertion that he won’t enforce the new legislation because it violates federal law.
But other legal officials disagreed and said the courts have failed to settle the issue. Neither the Ninth Circuit Court of Appeals or the U.S. Supreme Court have taken up the issue of whether federal law preempts sanctuary ordinances, according to the city attorney’s August 14 memo.
Campos said the mayor’s actions are unprecedented and that the board will wait until the process has run its course before deciding what to do. Once the board casts a final vote, the mayor has 10 days to veto the item and then the board has another 30 days to uphold it.
“The Mayor does not get to have the final say on whether it is illegal or not. It is up to the judge to decide that,” Campos said. “It is premature to say what we are going to do. We have to wait and see what our options are.”
However, he acknowledged that the sanctuary laws depend on city officials being united.
Newsom, who is running for governor, said he will veto the measure and asked juvenile probation officers to continue reporting youth who are suspected to be undocumented to ICE.
Gabriel Calvillo, the president of the San Francisco Deputy Probation Officers Association, a union, said his officers would continue to report juveniles to immigration.
“I believe federal law said law enforcement agencies are mandated [to report] when they are undocumented,” he said. “We are following federal law above local law.”
Meanwhile William P. Sifferman, the chief juvenile probation officer and head of the city’s juvenile probation force, said his department would wait until the board makes a decision.
He added that his department would continue to do their job in a way that “comports with all laws.”
“We will await the outcome of the San Francisco legislation proceedings that are in progress. Upon the conclusion process, we will confer with the city attorney’s office and outside legal counsel regarding any impact the legislation will have on our existing protocols,” he said.
Angela Chan, a juvenile defense attorney, said that there are no federal laws that require city employees to report youth to immigration officials.
“Federal law does not and cannot require that city officials inquire [about] immigration status because that would constitute the federal government unlawfully commandeering local governments to do the work of the federal government,” she said.
Kevin Johnson, the dean of the University of California at Davis Law School and an expert in immigration law, agreed with Chan: “Either [Mayor Newsom] is getting bad legal advice or he’s misunderstanding how the law operates,” he said.
He also speculated that the mayor’s political ambitions may be coming into play. “He may have done the calculation that being tough on immigrants and tough on crime is politically advantageous,” he said.
Both Johnson and Chan agreed that having law enforcement officials report youth who they suspect to be undocumented may open the door to racial profiling. Chan said juvenile probation officers cannot explicitly ask about a youth’s immigration status, so they often report them to ICE based solely on suspicion.
“They are putting themselves in a very precarious position because this stinks of racial profiling,” she said. “A probation officer has no training in immigration law.”
If the proposal passes and is not enforced, backers of the Campos proposal may ask the Board of Supervisors to make Sifferman testify on why the law isn’t being enforced, Chan said.
A last resource would be to sue the city for not enforcing it, she said.
“The mayor cannot pick and choose which laws he wants to enforce based on his political interest,” Chan said. “It’s not just his city. It’s our city.”