Protesters critical of a memo authored by San Francisco City Attorney Dennis Herrera hold signs reading “Herrera’s advice sends kids to ICE” at his inauguration speech Jan. 7 in City Hall’s North Light Courtroom. RAMSEY EL-QARE / THE GUARDSMAN
By Alex Emslie
The deadline for implementing San Francisco’s amended sanctuary city policy is rapidly approaching, and immigrant rights groups, the city attorney’s office and U.S. attorney Joseph Russoniello are embroiled in a legal back and forth over the issue.
Despite the San Francisco Board of Supervisors’ Nov. 10 vote to override the mayoral veto of a revision to the city’s sanctuary policy, the Juvenile Probation Department continues to report suspected undocumented minors accused of a felony to U.S. Immigration and Customs Enforcement when they are booked.
The legislation has a deadline for implementation of Feb. 9.
“We are still conferring with the city attorney’s office,” said William Siffermann, chief parole officer for the JPD. “Our intentions are to follow state and federal law and the ordinance to the extent permitted by state and federal law – which are the last words of the ordinance.”
The board policy would require JPD officers to not report suspected undocumented youth to ICE until after a “felony petition has been sustained,” legal language meaning conviction for a juvenile. Accused minors would have access to attorneys before being reported, and if charges were dropped or reduced to misdemeanors, they would not have to fear deportation.
“We have a sanctuary policy that is consistent with state and federal law,” San Francisco Mayor Gavin Newsom said outside the Jan. 7 inauguration of City Attorney Dennis Herrera, which was also attended by protesters calling for the implementation of the board policy. “The Board of Supervisors passed legislation that requires itself to be consistent with federal law. That means that their legislation has been, by definition, enacted because it contradicts itself. You can’t pass something that’s inconsistent with federal law.”
Matt Dorsey, spokesperson for the city attorney’s office, said federal code 8 U.S.C. 1373 is “the big one” concerning implementation of the amended sanctuary city ordinance. Interpretation of that federal law, and the separation between state and federal powers under the 10th Amendment to the U.S. Constitution, form the crux of the legal debate over the ordinance.
The federal code only requires state and local governments to cooperate with specific requests from federal officers regarding citizenship, according to Dean of U.C. Davis School of Law Kevin Johnson.
“Generally speaking, there is no duty to disclose immigration status of persons arrested on state and local governments,” Johnson wrote in an e-mail to The Guardsman. “Other cities, like New York and LA, have similar – indeed more expansive – policies and have neither been sued or alleged to have violated federal law.”
Immigrant Advocacy Groups
Criticize City Attorney
Herrera’s inauguration drew a group of six protesters because of a memo he authored in response to a request from Supervisor David Campos. The memo was released Dec. 16 as a response to Campos’ written inquiry as to, “whether Mayor Newsom has the authority to unilaterally refuse to implement the duly-enacted civil rights legislation.”
Herrera’s 10-page response said the decision to implement the policy lies with the JPD and their assessment of state and federal law. The memo also outlined the role of the city attorney’s office.
“I would hope that the city attorney would take a strong position in defense of the sanctuary ordinance,” said Hillary Ronen, one of the protesters. “I’m extremely disappointed by the memo that he released. It’s Herrera’s job to stand up for city laws that protect immigrant youth in San Francisco.”
Immigration advocacy groups have voiced a disagreement with both the mayor and city attorney’s handling of the ordinance.
“Unfortunately, Herrera has yet to stand up for the democratic process. Rather, it appears he is asking juvenile probation to determine on their own what is valid under federal and state law, even though they do not have the legal expertise to do so,” Angela Chan, staff attorney for the Asian Law Caucus, wrote to The Guardsman. “Any assertion that city officials cannot be prohibited from reporting youth to ICE is not addressing the central concern in this debate, which is that probation officers should not be required to report youth to ICE at the booking stage.”
Cinthya Muñoz-Ramos from the St. Peter’s Housing Committee said the ordinance doesn’t mean undocumented youth won’t be prosecuted. “It just means they would have an opportunity to be heard before they are reported to ICE,” she said. “It’s just basic due process. I don’t see how basic due process puts anybody’s life in danger.”
In response to charges from immigrant rights activists, Herrera’s office has been attempting to explain the role of the city attorney – that of legal council without the ability to implement any policy. The city attorney’s Web site notes that Herrera “does not, in fact, deport anyone” in response to a flyer demanding that he “Stop deporting immigrant youth.”
“We have to play a deferential role as the lawyer for the city,” Dorsey said. “Policy decisions have to be made by the policy makers. The city attorney doesn’t green-light or red-light decisions. If juvenile probation decides that they want to alter their policies and practices, we’ll defend them. If they decide not to, we would defend that.”
“There is a legal theory that the U.S. attorney has put forward recently that says to not report is to harbor,” Dorsey said. “In other words, he’s taking a very broad view of the statute that would seemingly create an affirmative duty, and that’s something that we disagree with.”
U.S. attorney Joseph Russoniello’s opposition to the amended sanctuary ordinance has influenced Herrera’s advice to the JPD. Russoniello’s novel interpretation of “harboring” undocumented immigrants has laid the foundation for a possible lawsuit against the federal government on a 10th Amendment claim, according to Dorsey.
He said the 10th Amendment doesn’t grant the federal government the constitutional authority to force San Francisco or any local police force to act as immigration enforcement.
Herrera has been having discussions with legal advocates about the possibility of challenging Russoniello’s interpretation. While some are hesitant to sue the federal government, “a lot of lawyers think that we’re probably better off being on the affirmative side than waiting to get sued,” Dorsey said.
Angela Chan underscored the human cost of delaying implementation of the amended ordinance with litigation.
“The faster we can resolve this, the better it will be for the youth who are being unnecessarily torn from their families,” she said.