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Captain Jimenez says the teens' precarious situation perhaps makes deportation a more humane option than enabling them to stay here. "If the person is illegal and has no means of support, if he goes back out on the street, what is his alternative?" he says. "He has no alternative but to do what he's told."
The crack dealing soon caught up with Guerrero. He was arrested near the Civic Center BART station with rocks on him. Released from juvenile hall on probation, he again found himself broke. His mom asked him to send money, so he headed back to the Tenderloin and unwittingly sold crack to an undercover cop. "They dress like drug addicts, they tremble like drug addicts like they really need drugs, [and wear] ugly clothes," he recalls. "Then they take out their badge and say, 'I'm the police! Don't move!'"
Guerrero went back to juvenile hall, serving about 80 days of detention and then more than a year of probation.
After his second arrest, Guerrero was able to change — with a little help. He moved into a Catholic-run charity house in the Mission that does outreach at juvenile hall, and found steady painting work, sending money back to his mother. Now 21, he has kept his adult record clean. (He was arrested in 2007 for possessing cocaine for sale, but the district attorney dropped the charges.) "No more drugs, no more probation, no more nothing," he says triumphantly.
Guerrero says he doesn't want to petition immigration for legal residency for fear he would be deported to Honduras, where he still believes he would be killed in his hometown. "I don't want to stay, but I'm liking it here more and more." Why? The pay is better, he says. Work is more plentiful. Plus, there's less crime.
If you believe the hate mail arriving at his City Hall office, David Campos, the scooter-riding District 9 supervisor from Bernal Heights, hates America. He should be prosecuted for treason, he's a tool of MS-13, and he should be deported back to where he came from. (That is, Guatemala, which he left and came to the United States — illegally — when he was 14.) Yet Campos is undeterred. Blowback is to be expected when you write and successfully pass legislation that stands up for illegal kids accused of felonies. The freshman supervisor hasn't just taken on the mayor, but much of anti-immigrant America, and the legal ramifications ripple out just as far.
"San Francisco has been a leader on these issues; that's why I think it's important to get it right in San Francisco, because if we can't get it right in San Francisco, it's going to have consequences elsewhere," Campos said, adding that the current practice championed by the mayor negates San Francisco's status as a sanctuary city.
At the center of the storm over the Campos measure — and the reason no one seems to plan on following it — is the possibility of a legal challenge. A confidential August memo from City Attorney Dennis Herrera, leaked by the mayor to the Chronicle, warned supervisors that adopting Campos' changes could result in the entire sanctuary city ordinance being struck down in court.
As flummoxed as supporters of the legislation are about the mayor's leak providing a roadmap to sue the city, they can't deny it has a point. Federal law states that local governments cannot prohibit their officials from communicating with ICE about anyone's immigration status. And critics say that the new law, in effect, creates a time period in which officers cannot contact ICE — the time between when the kid is picked up by the police and when there is a verdict.
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.