ICE claims it warned San Francisco. But it warns San Francisco six times a day, and more than 320 times so far this year. It never stops warning.
Abel Enrique Esquivel, Jr. deserved better than this. The 23-year-old deserved better after a lifetime of hard work, volunteerism and mentoring than to be gunned down in his prime in what appears to a mindless robbery attempt. And he certainly deserved better than to be used, in death, as a cudgel by calculating people with anti-immigrant agendas or calculating federal agencies with a mandate to expediently deport as many immigrants as possible.
On Aug. 15, Esquivel, a Mission lifer, was waylaid in the wee hours at 26th and South Van Ness, shortly after getting off work at a market. He was shot with what turned out to be a pistol filched from the parked car of a San Francisco police officer (yes, again). One of the three men accused in Esquivel’s killing, 24-year-old Jesus Perez-Araujo, had been the subject of an Immigration and Customs Enforcement (ICE) detainer request while he was months earlier incarcerated in this city on misdemeanor drug and weapons charges.
The alleged murderous actions of a man the feds asked to be detained — but who wasn’t, per city law and policy — triggered a round of gleeful vituperations from the usual gang of blowhards who revel in this city’s miseries, and garnered a stern finger-wagging from ICE.
“Despite the detainer, local authorities made the decision to release him back into the community without providing any notification to ICE,” regional ICE spokesman James Schwab told the media. Chalk this up as “another arrest that may have been averted had the city chosen to cooperate with ICE.”
This is a familiar refrain. And a misleading one. By now you’ve likely noted the parallels between Esquivel’s tragic death and the 2015 killing of Kathryn Steinle on Pier 14. Both were allegedly shot with law-enforcement officers’ stolen guns by undocumented immigrants ICE had sought to deport — but whom were shielded by this city’s laws and policies. ICE filed detainers. They warned this city — we were warned! — but we did nothing. And now, two young people are dead, and undocumented immigrants are being tried for murder.
What ICE is failing to mention is that it plasters this state with detainers — thousands, if not tens of thousands, per year. And none of them are honored; not one of California’s 58 counties now complies with ICE detainer requests. In 2016, ICE sent San Francisco 107 detainer requests. As of last week, it had sent 320 in 2017 — and the pace is picking up. San Francisco County Jail now routinely receives two detainer requests per shift, which adds up to six per day.
So, it’s more than a little disingenuous of ICE to chime in after some two-bit pot dealer is accused of a homicide and claim this and other cities were warned. ICE never stops with the warnings; ICE is like the car alarm in your neighborhood that won’t cease going off. What’s more, ICE knows this. It knows its detainers won’t be heeded. Can’t be heeded, in fact, if you believe Constitutional scholars and a growing chorus of judges.
ICE, however, shows no signs of changing its strategy. If this truly is a matter of public safety, as the agency claims, it has chosen to take the one approach it knows won’t work.
Immigration policy is complicated. The juxtaposition of smiling photos of “Beautiful Kate” Steinle and the scowling visage of her orange-jumpsuited alleged killer is not. The tragedy fell like manna from xenophobic Heaven into presidential candidate Donald Trump’s lap and countered heaps of scholarly studies indicating immigrants — including undocumented immigrants — are less prone to criminality than native-born Americans, and disproving the fallacy that legions of “bad hombres” are a growing national menace. While Trump and his Department of Justice have repeatedly referred to sanctuary communities as cesspools of crime, actual statistics reveal they’re safer — and more prosperous.
(Readers can be left to debate amongst themselves why the killing of a Latino man, allegedly by Latino men, has not elicited the same white-hot outrage and national furor as the killing of a white woman, allegedly by a Latino man. Maybe it’s complicated. But maybe it’s not.)
This immigration debate has transcended the facts; the facts indicate we shouldn’t even be having a debate. But facts matter. So, it matters that we point out that San Francisco isn’t refusing ICE detainers because that’s what liberal, NPR-cloth-tote-bag-Viva-La-Resistance communities do, but because of a growing legal consensus that ICE detainers violate Fourth Amendment provisions against unreasonable search and seizure.
It matters that we point out that ICE detainers aren’t signed by a judge or a magistrate. Rather, like a high school senior penning her own excuse notes, they’re written by ICE. Holding someone who has either completed his sentence or made bail — without any judicial authority — opens up a municipality to legal consequences.
If ICE wants to get its hands on a San Francisco prisoner, it should do “what every other law-enforcement agency does: Get a warrant,” says Eileen Hirst, a spokeswoman for the San Francisco Sheriff’s Department. A prisoner being flagged because of outstanding bench warrants, DA warrants, traffic warrants, or out-of-county warrants is “easily a daily occurrence,” she continues. ICE, Hirst says, has never presented this city with a warrant.
Getting warrants, it turns out, isn’t so easy. It is often not an inherently criminal matter to be in the United States without status; it’s a civil violation. ICE might expend much time and have great difficulty convincing judges to sign such warrants. Instead, it disseminates mountains of detainers in hopes of getting local law enforcement to detain the immigrants on its behalf — and assume the legal peril.
ICE officials have claimed there is currently “no mechanism” to obtain such warrants. Critics, including San Francisco immigration attorney and police commissioner Bill Ong Hing, say ICE simply can’t be bothered. “They should be taking the extra step of going to a federal magistrate and getting federal warrants for the people they want,” he says. “But they know the vast majority of these people are not dangerous, so they don’t. ICE is lazy.”
Regardless, the status quo is untenable. ICE continues to spew tens of thousands of detainers that it knows won’t be honored to municipalities that don’t honor them because of a burgeoning consensus that they’re legally dubious and a magnet for litigation. This — not packs of bad hombre killer immigrants or stealth terrorist refugees — is the real conundrum that needs to be fixed, and it isn’t going to happen via fear-mongering or race-baiting. Honest, thoughtful policy analysis and solutions actually designed to solve problems aren’t sexy. But that’s what’s needed.
That, too, is warranted.