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Under the grip of the immigration crackdown and in open defiance of established S.F. policy, the city's Juvenile Probation Department is prohibiting undocumented relatives from taking custody of arrested youths.
Critics say the juveniles, mostly held on relatively minor crimes, are not returned to their families without prior confirmation of their relations' legal status. Instead, they are held, sometimes months at a time, and eventually turned over to the federal Immigration and Naturalization Service (INS) for deportation.
Probation officers can fairly contend that they are caught between mutually exclusive federal and local imperatives. And the situation has been exacerbated by the rise of drug-running operations that exploit Mexican teen-agers, placing a swollen number of such youths in the system. But the department itself acknowledges a real risk of selective custody.
"Since I've been down here, my observation is if you're a Hispanic youth, you'll be questioned on status," says Janet Forsythe, who last October was named head attorney for the Juvenile Division Unit of the Probation Department. "Over the course of time there are many kids from other countries: China, Africa, Samoa, Philippines, Vietnam, Canada. I have never heard complaints from their families regarding inquiries into alienage status. I find that very interesting."
Probation officers find the situation interesting, too. "It sure seems like Hispanic kids are targeted," says Probation Officer Carlos Gonzalez. "Some [officers] are more law-and-order types, strictly adhering to federal guidelines, but I'm not at liberty to say more."
At a cost of $150 per day for every child held at the Youth Guidance Center, the practice is expensive and a flagrant violation of state child welfare codes, the local sanctuary policy of noncooperation with the INS, and the policies of the Juvenile Probation Commission.
"I am troubled by this perception of probation officers," say Eleazar Aramburo, a private attorney and a member of the Juvenile Probation Commission. "If they are disclosing information to the INS, it is a violation of the confidentiality of the minor."
On Aug. 13, in response to the concern of youth advocacy groups, the Juvenile Probation Department approved a policy forbidding probation officers from making recommendations based on the immigration status of a child or his family.
Explaining the origins of the policy, Charles Breyer, president of the Juvenile Probation Commission, admits there were problems with "our probation officers. The consequence was that undocumented children were being detained while kids without status problems were given over to their families. This contributed to overcrowding and denied the placement of children with people who can give care."
Whether the change in policy has led to a change in action is an open question, however.
One week later, on Aug. 20, Marie Ramirez, 26, was denied custody of her brother Rafael, 16, charged with possession of cocaine, apparently because of her undocumented status.
"The [probation] officer led me to believe that he couldn't release Rafael into the custody of a relative who was undocumented," says Ramirez, who asked that their real names not be revealed. "He said he had to release him to a blood relative, and if we were undocumented he would have to deport Rafael to Mexico."
Rafael was eventually released to his sister after Dimone Hale of the Juvenile Probation Commission intervened.
"There is no requirement for the Probation Department to act as a police force," Hale says. "We never have to ask questions about status."
But resistance persists. On a copy of the new policy that was circulated through the Probation Department the week of Aug. 26, for instance, one probation officer wrote in the margins, "Minor's legality must be considered in order to conform to federal immigration law." Another note read, "Can any other law on policy regarding undocumented supersede federal law?"
"Right now there is a policy that no such questions should take place," says one official close to the Probation Department, "but if I was your daughter, and you were undocumented, I would not be released to you. No matter how many years in this country, the fact that you're undocumented would prevent that. It's really gotten out of hand."
The continued questionable treatment of such (mostly Hispanic) youth by the department has put the City Attorney's Office on the hot seat.
"Documented status is not supposed to be a question that plays any role in releasing a minor to their parent," says Susan Frankel, deputy city attorney for the Juvenile Probation Commission. However, she refused to respond to further questions on the matter, explaining that "you're basically asking me if my client [the Juvenile Probation Department] is breaking the law, and I can't answer that."
But lawyers representing Hispanic children are not so discreet.
"They are deporting kids, period," says Marla Zamora, a public defender with the Juvenile Division Unit of the Probation Department. "The Sanctuary Ordinance prevents them from doing this, but they're behaving like the ordinance is over."
Recently, Zamora represented "Alfredo," an undocumented Mexican 16-year-old.
Alfredo was charged with possession of cocaine last January. His probation officer, 20-year Probation Department veteran Charles Rand, refused to release him to his aunt with whom he was sent to live by his mother, because she was undocumented. The fact that she was married to a legal resident and had three children did not sway Rand.