Campos urges Lee to implement entire due process law

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Text by Sarah Phelan. Photographs by Luke Thomas

After the Guardian broke the news that Mayor Ed Lee was planning to only partially implement Sup. David Campos’ due process legislation, we headed to City Hall to witness Lee announce his partial shift during question time. And afterwards, Lee told reporters that he spent the months since he was appointed reviewing the policy and talking with leaders in the city’s juvenile justice departments.

“I looked at the difference between youth with family here and youth who did not,” Lee said, noting that his decision to let youth that have family here to have their day in court is in keeping with his policy of focusing on family reunification and getting families more involved.

Lee stressed that youth with family here will still need to be enrolled in school and not be repeat offenders in order to have their day in court.

“It will be decided upon on a case by case basis,” he said.

Lee said he has had conversations with the federal government and US Immigration and Customs Enforcement (ICE) about the policy shift. “We have discussed this,” Lee said. “And we did get a very strong feeling that the federal government is a bit confused.”

Asked how far he is willing to go to defend this latest policy shift, Lee said, “I’ll take that up as it comes. President Obama is struggling with immigration right now.”

Reminded that his predecessor Mayor Gavin Newsom refused to implement any aspect of Campos’ due process legislation, even though a super-majority of the Board passed the ordinance in 2009, Lee said, “I don’t compare myself with the former mayor.”

Asked what percentage of immigrant youth that end up getting booked are “unaccompanied,” Lee said he did not have those statistics. “Check with Siffermann,” he said, referring to the head of the city’s Juvenile Probation Department.”

Lee’s announcement was met with mixed reviews among immigrant advocates.

Civil rights groups applauded Lee’s decision to immediately begin implementation of Campos’ legislation, which was passed in November 2009, restores due process for immigrant youth in the city’s juvenile justice system and ensures that innocent youth are not torn from their families for deportation.  But they also expressed disappointment that Lee will only be implementing the policy for youth who have immediate family here, and not for unaccompanied youth.  And they all urge him to fully implement what they described as Campos’ “duly-enacting, common-sense law so that all innocent youth receive protections.”

They noted that implementation of Campos’ broadly-supported law, which has been endorsed by over 70 organizations, had been stalled until today due to former Mayor Newsom’s refusal to enact the law. 

Under Newsom’s direction, Juvenile Probation reported over 160 youth to ICE at the point of arrest, prior to the youth receiving due process, based only on a juvenile probation officer’s “reasonable suspicion” that a youth is undocumented. 

Civil rights advocates note that Newsom’s problematic policy was responsible for tearing innocent youth from their families and spreading fear among immigrant residents around coming forward to cooperate with police, either as witnesses or victims of crime.  

And they observe that the policy that Juvenile Probation Department has been enforcing since the summer of 2008, and which involved reporting youth for life-altering deportation at arrest, went well above and beyond any obligations under federal law. 

They noted that, as a cadre of legal scholars, including University of San Francisco Law Professor Bill Ong Hing, have repeatedly made clear, there is no requirement imposed on city officials under federal law to ask about immigration status or to report individuals suspected of being undocumented.”

Ana Perez, executive director of Central American Resource Center, agreed.“While we appreciate Mayor Lee taking action to finally begin implementation, we are concerned that he is only implementing the policy for accompanied youth and not for youth who may be unaccompanied because they are trafficked to this country, are orphans, or are escaping persecution.”

“I’m certain it’s not for all youth,” Pérez continued. “So, it’s a small win. But what about the kids who are victims of human trafficking? The fact is we spent so much time developing a policy that was approved by a majority of the Board. So, this is bitter sweet.”

Asked what became of the criminal grand jury investigation that then US Attorney Joe Russoniello initiated in 2008, when Mayor Gavin Newsom was running for governor, and news first broke that the city was accompanying youth who weren’t here with family back to their home country, Pérez suppressed a snort. “It seems that was a bunch of empty threats to try and get the city to move to a more conservative position,” she said. “It’s been a whole new day with Obama.”

Angela Chan, staff attorney at the Asian Law Caucus said that Juvenile Probation’s prior policy of reporting innocent youth exacerbated the impact of a broken federal immigration system on local immigrant families. “We appreciate that Mayor Lee has taken this long awaited step forward because he values family unity and due process for youth,” Chan said. “However, we ask that the Mayor not exclude unaccompanied youth from receiving due process protections."

Patricia Lee, managing attorney in the Juvenile Unit at the Public Defender’s Office also supported the demand for complete implementation of Campos’ legislation. “If you want the immigrant community to feel safe enough to cooperate with police and probation, then those agencies should not be viewed as representatives of immigration,” she said. “My clients and their families are scared of probation, they are scared of police. Selective implementation of the due process policy for only accompanied youth and not to unaccompanied youth does not solve this problem.” 

And Charles Washington, the Muni bus driver and longtime San Francisco resident, whose wife and 14 year old son were almost separated from him as a result of the prior Juvenile Probation policy, expressed concern that the policy would only be implemented for some youth. “I’m glad to see Mayor Lee is doing the right thing by implementing the due process policy,” he said. “However, he should not leave any youth, especially those who are most vulnerable, behind.”

Sup. Campos applauded the Mayor for implementing the policy while expressing disappointment that it is only partial implementation. As Campos’ stated during the Board meeting, but after Lee had already left, “This body enacted that law and that law needs to be respected.  It is not up to the executive branch to second guess the legislative branch.” 

Sup. Eric Mar added that he supports full implementation for all youth.

 And Sup. Jane Kim, who asked the Mayor during the Board’s Question Time about his plans for implementation, stated, “My hope is that he will commit to full implementation of this policy.”

But in the end, the burden fell on Campos to explain why partial due process is unjust. “This is a good first step, but it doesn’t go far enough,” Campos explained. “As I understand it, the decision Mayor Lee has taken is, that if you are a minor, and are accused of a felony, you will be given due process if you have family here. But if you are charged with a felony, but don’t have family here, then you will not be given due process. Let me begin by thanking Mayor Lee for at least taking one step in the right direction. That said, we still will not have full compliance with a law that was duly enacted by this body. Full compliance means giving every child that interacts with the juvenile justice system due process. So, {Mayor Lee’s first step] is simply not sufficient.”

Campos noted that when mayors are sworn in, they agree to uphold laws that the Board enacts. “So, the law needs to be respected,” Campos said. “It’s not up to the executive branch to second guess the legislative body. That second guessing can only be done by the courts. Therefore, we, once again, ask the mayor of San Francisco to comply with full implementation.”

Noting that a bedrock of the U.S.’ justice system is the principle that we are innocent until proven guilty, Campos said that if the mayor does not fully implement the law, as approved by the Board, “There’s a very real possibility that children that we are reporting [to ICE for possible deportation] are not guilty of what they have been accused of. So, once again, I ask the mayor to reconsider his opinion.”

Campos also noted that there are already procedures in place, within the existing juvenile justice system, to ensure that “we do not have individuals released who should not be.”

After the meeting, Campos noted that the format for the Board’s question time with the mayor currently leaves something to be desired: an opportunity for the Board to reply.

"It would be better if it would allow for some exchange, though obviously, we don’t want it to be a ‘gotcha’ game. But at this moment, it’s too rigid.”

 Asked who drafted the current Question Time format, Campos replied, “Board President David Chiu.”

Comments

Mayor Ed Lee has adopted a sensible stance in regard to immigration policy. He recognizes that existing federal practice causes unjust hardships to some families and individuals. But he also sees the need to protect public safety.

Supervisor David Campos, on the other hand, suffers from tunnel vision. He has turned a blind eye to legitimate concerns over public safety.

Campos flashes a red herring in claiming that illegal immigrants who are accused of felonies are being denied the due process of law. In fact, contrary to Campos, any illegal immigrant accused of a felony is entitled to a trial, just like anyone else.

However, they are not entitled to remain in the U.S. if they are, in fact, in this country illegally. Procedures are in place to decide such a question in accordance with law. Campos is aware of this fact.

Ed Lee has a mature and balanced view of the common good of the city.

David Campos is a parochial partisan representing a particular constituency. He is entitled to his narrow view of things, but he is not entitled to impose it on the city in the name of justice or the common good.

Posted by Arthur Evans on May. 11, 2011 @ 9:38 am

if there are more than seven people in the City that care about this issue, I'd be stunned.

Posted by Walter on May. 11, 2011 @ 10:38 am

Very good post Mr. Evans.

Posted by Guest on May. 11, 2011 @ 2:38 pm

Hmm, Walter. I guess you need to check the latest census figures for SF.

Posted by sarah on May. 11, 2011 @ 10:51 am

opinions on local politics?

Really? Gee, I must have missed that.

Posted by Walter on May. 11, 2011 @ 12:17 pm

I would hope that Lee and the Board of Stupes (Campos) realize that their own lives are on the line if one of these "Youths" kill someone.

Posted by Guest on May. 11, 2011 @ 11:47 am

Since his election to the board of supes, David Campos has been traveling in the same political arc as Chris Daly. He's entrenching himself in his own district while making himself radioactive everywhere else.

Campos would do well to consider Daly's fate - self-marginalization. Daly is now spurned by former allies, friends, and family.

There's a better way to practice politics and live life.

Have a due regard for the larger picture. Seek out the kernel of truth in others' points of view. Aim for practical compromises.

Or, as Apollo said at Delphi:

"Nothing to excess."

Posted by Arthur Evans on May. 11, 2011 @ 1:03 pm

The Fourteenth Amendment of the Constitution guarantees the right to due process and equal protection of the laws for ALL PERSONS within the jurisdiction of the US. By making this artificial distinction between "accompanied" versus “unaccompanied” youth, Mayor Lee is effectively condoning a segregated system of justice. This is unacceptable.

We have witnessed how segregation works in this country through our long, shameful history of discriminatory laws and practices. These policies have always impacted the poor and people of color disproportionately. In fact, Mayor's Lee's proposal is discriminatory because it will hurt the most vulnerable youth -- poor and desperate kids who are here without a support system.

As Sarah reports, there was widespread support for Campos’ ordinance, which was endorsed by over 70 organizations. How can Mayor Lee claim to uphold the rule of law when he is flaunting an ordinance that was duly passed by the BoS's and has the broad support of the community? (I think the ACLU would have a good reason to challenge it if Lee's proposal is enacted.)

Mayor Lee should enact the ordinance as it was passed, without discriminating against the most vulnerable kids. No excuses! The Constitution and our history would demand nothing less than full compliance with the law.

Kudos to Supervisor Campos for standing up for the right to due process for EVERY immigrant child.

Posted by Lisa on May. 11, 2011 @ 4:34 pm

70 bay area organizations, wow!!!! Did you count the People for the Ethical Treatment of Unicorns and Big Foots?

Posted by maltlock on May. 11, 2011 @ 7:36 pm

Thanks, Lisa, for your thoughtful post above. Some responses follow.

You say:

“The Fourteenth Amendment of the Constitution guarantees the right to due process and equal protection of the laws for ALL PERSONS within the jurisdiction of the US.”

Right you are.

However, the due process of law already exists for persons who are in the U.S. illegally. A hearing is held on their status in accordance with the law.

The U.S., like every nation, has the right to expel persons within its borders who are here illegally.

You say:

“By making this artificial distinction between 'accompanied’ versus ‘unaccompanied’ youth, Mayor Lee is effectively condoning a segregated system of justice.”

Wrong you are.

SF has no power to make immigration laws.

In the interest of compassion for immigrants, Mayor Ed Lee is attempting to skirt federal law as much as possible, without at the same time compromising public safety.

If Mayor Lee complied strictly with federal law, he would not try to carve out any safe place at all. He would keep the system in place that former Mayor Newsom had established. Newson acted after having been advised by the feds that such was the only legal policy for him to take.

My guess is that SF’s efforts to skirt the law will eventually be cut down by the courts entirely. As noted, cities and states have no power to establish immigration policy.

I myself support giving a hand to illegal immigrants who are here and have established a good record for themselves, provided they are no threat to public safety.

However, in the end, the feds will prevail. We should not do anything foolish that would hasten their victory.

You say:

“In fact, Mayor's Lee's proposal is discriminatory because it will hurt the most vulnerable youth -- poor and desperate kids who are here without a support system.”

In fact, Mayor Lee’s proposal violates federal law, as did the supes’ measure.

It would be wise for advocates for immigrants to accept the mayor’s compromise in good grace and not continue to make a fuss. Otherwise, they will force the issue into the federal courts, which will cut down the provisions of both the mayor and the supes.

We may see an ironic situation here where those who claim to be immigrants’ advocates end up as their enemies.

Is that what you want?

You say:

“ … there was widespread support for Campos’ ordinance, which was endorsed by over 70 organizations.”

Only Congress and the President have the power to establish immigration law. David Campos doesn’t count.

You say:

“he [Mayor Lee] is flaunting an ordinance that was duly passed by the BoS's.”

The board of supes has no power to establish immigration law. This is a federal prerogative, as noted above.

You say:

“I think the ACLU would have a good reason to challenge it if Lee's proposal is enacted.”

If the ACLU should make such a stupid move, all the city’s regulations would be stricken down by the courts, for the reasons noted above.

“The Constitution and our history would demand nothing less than full compliance with the law.”

The constitution and our history give the power of such national matters to the federal government, not the states or cities.

We had a Civil War over this issue. The states lost. The feds won.

You say:

“Kudos to Supervisor Campos for standing up for the right to due process for EVERY immigrant child.”

If Campos persists with his loud ideological drum-banging, he will only play into the hands of the feds.

Is that what you and he want?

Wouldn’t it be wiser to show some common sense?

Posted by Arthur Evans on May. 11, 2011 @ 6:29 pm

"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 El Tecolote. “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.”

http://news.eltecolote.org/news/view_article.html?article_id=ebe54db83db...

“The central teaching of the Tenth Amendment cases is that ‘even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.’ Congress may not, therefore, directly compel states or localities to enact or to administer policies or programs adopted by the federal government. It may not directly shift to the states enforcement and administrative responsibilities allocated to the federal government by the Constitution. Such a reallocation would not only diminish the political accountability of both state and federal officers, but it would also ‘compromise the structural framework of dual sovereignty,’ and separation of powers. Thus, Congress may not directly force states to assume enforcement or administrative responsibilities constitutionally vested in the federal government.”

http://www.sfbayguardian.com/politics/2011/05/10/legal-scholars-weigh-se...

Posted by Lisa on May. 12, 2011 @ 12:16 pm

A good while after the adoption of the 10th amendment, the U.S. had a Civil War. It was fought over the issue of states' sovereignty vs. the power of the federal government.

States' sovereignty lost. The Constitution was amended to take into account the new balance of power between the federal government and the states.

These new amendments shifted power significantly away from the states to the central government, in effect creating a new Constitution that would have shocked the original framers.

The Civil War, the new amendments, and the new political realities all worked to crimp the old 10th amendment.

Immigration ideologues who base their arguments on the 10th amendment will not prevail. The courts are aware of how both the Constitution and the realities of national power have changed since 1789.

There's nothing progressive in pretending that the Civil War didn't happen.

Posted by Arthur Evans on May. 12, 2011 @ 1:47 pm