By Erin Sherbert
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That's why the probation department doesn't plan on enforcing it. "I know the majority of the probation officers will say that's a sad situation," says Gabe Calvillo, the president of the San Francisco Deputy Probation Officers' Association. "But we're in a situation that we don't want to be in violation of federal law." He says, with a federal grand jury still investigating the city over the old shielding policy, he doesn't know if there's going to be charges pressed against probation officers. "Who's going to look after our interests?"
After the Board of Supervisors overrode the mayor's veto of Campos' legislation last week, the city attorney wrote to U.S. Attorney Russoniello, asking if he would agree not to prosecute officers for enforcing the new law. Russoniello told SF Weekly that he wouldn't prosecute anyone, as long as the city ignores the law. He would not comment on the hypothetical situation of what would happen if the city did begin to enforce it. The city attorney has asked for an answer by Dec. 7, or may try to get the matter cleared up in court.
Still, the city could be sued just for having the law on the books. Mike Hethmon, general counsel for the Washington, D.C.–based Immigration Reform Law Institute, says his group is already searching for a plaintiff. He says to expect a lawsuit "from ours, or a lot of other law institutions that would like to claim the glory of taking down San Francisco. ... Just because they have the rainbow flag in San Francisco and the Confederate flag in Alabama doesn't change the underlying issues of federal supremacy."
Yet Campos, who is an attorney, says there's something the critics can't deny: No immigration law mandates that officers must call ICE, even for people booked on felonies. Therefore, the current practice of requiring reporting actually goes a step beyond what's mandated, and attorneys close to the issue say San Francisco's practice is one of the toughest in the country. Angie Junck, a staff attorney at the Immigrant Legal Resource Center, has compared juvenile policies at probation departments across the West Coast and in Arizona. "Even in Arizona, they don't rise to this level — that a kid is detained no matter what [felony] they're accused of and reported to immigration," she says.
Campos argues that his law doesn't state that the city is not prohibiting contact: It's creating city policy of when police will report. Critics, however, say that is still restricting officers from contacting federal immigration officials. "That may be the case," Campos acknowledges, "but those kinds of statutes have survived for more than 20 years now."
So that moves the focus to the legality of the sanctuary city ordinance. "The treatment of the alleged criminal alien juveniles may be the issue where it's decided, but the more basic question is the validity of the sanctuary city itself," says Hethmon of the Immigration Reform Law Institute, which unsuccessfully sued San Francisco over issuing city IDs to undocumented immigrants last year.
Attorneys for the Bologna family, who are now suing San Francisco for negligence, say that every law enforcement official should have the right to call ICE, so the ordinance that prohibits them from doing that is against federal law. "The officer has to be able to have the tool in his pocket to be able to pick up the phone and tell ICE that they have in their custody a gang member who's also an illegal alien," says Kris Kobach, a Kansas-based former counsel to former U.S. Attorney General John Ashcroft, who is helping with the immigration aspects of the Bologna case. Enforced or not, Kobach says Campos' law "strengthens the Bolognas' claim because it shows the city is defiant in its attitude toward federal law."
As part of the lawsuit, Tony Bologna's widow, Danielle, is seeking a judge's order forcing the city to hand over illegal immigrants. "One of the reasons Danielle Bologna is so intent on bringing this case is to prevent this from happening to some other family in the future," Kobach says. "If her suit can stop the city from violating federal law and secure the safety of other San Franciscans, that's something she'd like to achieve."
On an October schoolday, nearly a year after Oscar Martinez was caught with a knife at school, the teen sat in a claustrophobic immigration courtroom instead of in class, popping his knuckles and neck. He had traded his Air Jordans for leather loafers and a pinstripe suit so many sizes too big it looked like he was about to play an adult in a school play. Martinez sat with his private immigration attorney, Hector Chinchilla, who is already handling several cases of teens reported to ICE under the policy.
Chinchilla admits Martinez has few options. He has no qualifying family members to sponsor him, and he has probably been in the country too long to qualify for asylum. His only chance appears to be "withholding of removal," a type of deportation relief for which he will have to prove he is "more likely than not" to face persecution for belonging to a social group if he is sent back to El Salvador. Immigration courts are divided on how to treat asylum claims based on fear of gangs.