Immigration Policy, In Arizona and At Home

Originally published in the San Francisco Bay Guardian

By Angela Chan

Mayor Gavin Newsom and City Attorney Dennis Herrera have publicly opposed the anti-immigrant bill, SB 1070 in Arizona. A diverse coalition of civil rights organizations – including the Arab Resource & Organizing Center, Asian Law Caucus, Bernal Heights Neighborhood Center, Central American Resource Center, Community United Against Violence, Equal Justice Society, La Raza Centro Legal, National Lawyers Guild San Francisco Bay Area Chapter, POWER, and Pride at Work SF -- applauds both city officials for taking a strong stand against the Arizona bill. At the same time, we urge Newsom and Herrera to firmly and unequivocally support the implementation of a local policy that protects the due process rights of immigrant youth in San Francisco.

As with SB 1070 in Arizona, the mayor's policy of requiring juvenile probation officers to report young people to federal Immigration and Customs Enforcement (ICE) before they receive due process has opened the door to racial profiling and torn many innocent youth from their families.

Since July 2008, pursuant to Newsom's draconian reporting policy, more than 160 youth have been reported to ICE right after arrest, before they even have had a chance to be heard in juvenile court. That means that youth who are completely innocent of any crimes and youth who are overcharged have been reported to ICE.

Despite the veto-proof passage of a policy by the Board of Supervisors last fall that moves the point of reporting from the arrest stage to after a youth is found to have committed a felony, Newsom has insisted on ignoring the new city law. Herrera, in turn, has yet to advise implementation of the new law.

Like the Arizona bill, Newsom's policy requires reporting to ICE when local officials – in this case juvenile probation officers – merely have "reasonable suspicion" that an individual is undocumented. The factors that probation officers are required to use to determine reasonable suspicion have come under fire for codifying racial profiling into law. Such factors as "length of time in the country" and "presence of undocumented persons in the same area where arrested or involved in the same illegal activity" have little to do with accurately determining an individual's status, and much more to do with targeting the entire immigrant community and those who live in heavily immigrant communities.

In March, a year and a half after the mayor's policy went into effect, Chief Probation Officer William Siffermann admitted before the Rules Committee of the Board of Supervisors that the latter factor could lead to racial profiling. A few days later, Herrera stated that this factor had been removed from the policy. However, if any changes have been made to the written policy, they have not been made available to the public.

Another similarity with the Arizona bill: probation officers in San Francisco have not been properly trained and do not have the expertise in immigration law to accurately determine which youth are actually undocumented. Rather, these officers rely on race, ethnicity, language ability, surnames, and accent as a basis for assuming immigration status.

Much like the Arizona bill, Mayor Newsom's policy goes well beyond any obligations under federal law by requiring that probation officers report suspected undocumented youth to ICE. As a cadre of legal scholars, including University of San Francisco Law Professor Bill Ong Hing, have repeatedly made clear, federal law does not require that city officials ask about immigration status or report individuals suspected of being undocumented to ICE.

Finally, as with the Arizona bill, the mayor's draconian policy only compounds the harm to immigrant families caused by an already flawed federal immigration system, which is in drastic need of comprehensive reform. We need humane reform at the federal level, but in the meantime, Mayor Newsom and City Attorney Herrera need to take swift action to restore due process and protect family unity by ending San Francisco's draconian policy.

In standing up against racial profiling in Arizona, Mayor Newsom is back on the right track of defending immigrant rights -- now is the time to give immigrant youth and families fairness and due process in San Francisco.

Angela Chan is staff attorney with the Juvenile Justice and Education Project at the Asian Law Caucus