September 23, 2009
Pedro C.* is not the kind of teen adults would call a trouble maker. The soft-spoken 16-year-old, a junior at a San Francisco public high school, enjoys soccer and basketball, plays video games, and loves cars. He’s also a talented artist and often draws mythical Aztec figures. He has never been involved with crime or gangs, and before February, had never been arrested. But now, under a new police policy, the city may punish him for a minor offense by forcing him out of the country.
The policy that could lead to Pedro's deportation may soon be amended by local lawmakers, in response to public outcry. But for now, Pedro is in limbo, still trying to make sense of what happened.
Pedro’s crime was tagging a school wall with the words, “CALM.” He had no reason for doing it and admits it was an impulsive act. The police found him with a marker in his pocket and told him they had seen him write on the building. They arrested him and took him to the Youth Guidance Center. While Pedro waited for his father to pick him up, police asked him where he was born. He answered truthfully and police officials reported him to Immigration and Customs Enforcement (ICE) authorities. Later, even though his felony charges were dismissed to informal probation, immigration officials nevertheless detained him and placed him at an Orange County detention facility.
“I was very nervous and scared,” recalls Pedro, who came to the United States with his father when he was seven. “I mostly kept to myself.” After his release, he had even more to worry about. After being held by ICE for two months, he learned that, because he is undocumented, immigration officials had placed him in deportation proceedings. Police notified ICE about Pedro's immigration status, in accordance with a controversial new city policy.
Prior to August of 2008, undocumented youths arrested for felonies were subject to juvenile court but, as a matter of policy, were not reported to ICE. Though a local law mandated that police report undocumented adult felony suspects to ICE, the provision had never applied to minors. Last summer, Mayor Gavin Newsom signed a Juvenile Probation Department policy requiring the reporting of immigrant youth who had been arrested for felonies.
The new policy affected the police department’s enforcement of the so-called City of Refuge Ordinance. The law forbids the city to use its funds to enforce immigration law and prohibits government workers from reporting undocumented people to immigration officials.
Under the new measure, however, officers must notify ICE if they suspect that a juvenile who has been booked on felony charges is undocumented. The rules lay out guidelines for assessing youths' immigration status, including self-reporting or inconsistent reporting of their status, identification they are carrying, or even the mere presence of undocumented people near the site of arrest. But police are technically not allowed to base their assessments solely on an individual’s national origin or English ability.
In 1989, in response to raging civil wars in Central America, San Francisco became one of the first cities to enact a police non-cooperation law. Immigrant advocates, many of them religious leaders, sought to offer solace and protection to refugees fleeing persecution in their home countries. In the early 1990s, the city made an exception for felony arrests. Such charges automatically trigger reporting to ICE.
The ordinance is silent on treatment of minors, who typically receive different, more lenient treatment in the criminal justice system, compared to adults.
San Francisco's new reporting requirement deals severe penalties to undocumented youth who are arrested: the measure could lead to deportation, separation from their families, and a ten-year ban on reentering the United States. Immigrant youth may attempt to challenge deportation orders in immigration court, but rigid immigration laws make it difficult to win permission to stay in the country.
ICE Spokesperson Virginia Kice says that since the new policy was instituted last year, San Francisco police has reported 160 immigrant youth to federal authorities, but no data is available on the types of criminal charges they faced.
Abigail Trillin, a staff attorney with Legal Services for Children and counsel for Pedro C., says that in her experience, “A few crimes are serious, but many are as innocuous as Pedro’s graffiti crime.” She speculated that police charged him with a felony just so he would be swept under the new policy.
Patty Lee, managing attorney of the Juvenile Division of the San Francisco Public Defender’s Office, said that 95 percent of the Public Defender’s undocumented clients are charged with nonviolent drug offenses. Lee noted that “charges are sometimes exaggerated,” adding that minor graffiti cases like Pedro's “are rarely charged as felonies.”
Immigrant advocates are especially concerned that police officials may report individuals upon booking, even before their cases go before a judge. Angela Chan, an attorney with the Asian Law Caucus, says that currently, “even if a case is dismissed or the charges are lowered, the city policy still requires ICE notification.”
“A system that punishes on the basis of accusation is sick and violates due process,” Ms. Trillin says. “It also opens the door to racial profiling and discretionary charges. And, it isn’t safe for the community.”
According to the National Immigration Law Center, 81 jurisdictions—mostly cities and counties, but some states as well—have enacted policies restraining state and local police from enforcing federal immigration laws. Advocates say that when police start dealing with civil immigration violations, they undermine critical relations with local immigrant communities. A recent report by the Police Foundation, a national law-enforcement think tank, concluded that to effectively deal with crime, local law enforcement need the trust and cooperation of immigrant witnesses and victims of crime.
A coalition of San Francisco immigrant and youth advocates recently brought their concerns about Newsom's new policy to City Hall. On August 18, San Francisco Supervisor David Campos introduced legislation requiring reporting of immigrant youth only if their felony adjudications are upheld. (Read the statute, ordinance 091032, here.) Under the proposed policy, adolescents like Pedro, whose transgression did not ultimately amount to a felony, would not automatically be in jeopardy of being removed from the country.
Despite widespread support among the San Francisco Board of Supervisors, final approval of the measure remains in question. Reflecting political tensions around immigration reform, Newsom opposes the proposal. He changed the policy after the San Francisco Chronicle reported that an immigrant convicted of murder had been previously arrested for several felonies, but had never been referred to immigration officials. The paper also a series of articles suggesting the city had been shielding youth offenders.
If the city ultimately reverses Newsom's policy, it still might come too late for Pedro. While he is currently seeking a lawyer to handle his deportation case, he admits he's scared. When asked what he thinks he’ll do if he must return to Mexico, he shrugs. Having lived in the United States for most of his life, he has no memories of Mexico or of any relatives he might have there. His father brought him and his brother across the border eleven years ago, after his mother abandoned them. Apart from his younger brother, Pedro's father is the only family he knows.
“I’ll never do anything like this again,” he says, “but this is a screwed up law. “
*Pedro did not want to use his real name.
Sara Campos is a lawyer and writer living in Berkeley, California. Her fiction, prose and poetry have appeared in St. Ann’s Review, Literary Mama, Penwomanship, Long Story Short, The Womanist, New Verses News, Crux, The San Francisco Chronicle Magazine, Alter Net Media and The San Francisco Examiner.