Empty threats

Pub date December 9, 2009
WriterSarah Phelan


A controversial change to San Francisco’s sanctuary city policy — requiring due process to play out before city officials turn arrested undocumented immigrant minors over to federal authorities — officially becomes city law this week. But its implementation is still in limbo.

Last month, the Board of Supervisors voted 8-3 to override a veto of the legislation by Mayor Gavin Newsom, who says he won’t implement it anyway because he thinks it violates federal law. Authored by Sup. David Campos, the legislation goes into effect Dec. 10, and the city’s Juvenile Probation Department has 60 days to implement it, meaning the new policy kicks in Feb. 8.

City Attorney Dennis Herrera sought assurances from Joe Russoniello, the US Attorney for Northern California, that he wouldn’t prosecute local officials who follow the amended sanctuary city policy, as Russoniello had intimated to reporters. Russoniello refused to do so.

"I have no authority, discretionary or otherwise, to grant amnesty from federal prosecution to anyone who follows the protocol set out in the referenced ordinance," Russoniello wrote in a Dec. 3 letter.

But as UC Davis law professor Bill Ong Hing said Russoniello hasn’t cited any case law to support his position that following the ordinance could amount to harboring a fugitive from justice.

"It’s no more than hot air," Hing wrote Dec. 4 in a San Francisco Immigrant Rights Defense Coalition Dec. 4 press release. "While Russoniello has been vocally opposed to San Francisco’s pro-immigrant policies for two decades now, nothing will come of his empty threats…There has never been a federal prosecution anywhere in the country against city officials for following sanctuary ordinances."

In fact, it’s possible that Russoniello — a holdover appointee by President George W. Bush — won’t even get the opportunity."

The legal newspaper The Recorder reported Dec. 4 that the Obama administration is close to announcing Melinda Haag, a former federal prosecutor, as Russoniello’s replacement.

"Recently the Justice Department informed Russoniello that he could not hire any more personnel for the office, multiple sources said, which could suggest a choice for his successor is coming soon," the article stated, although it also noted that FBI background checks have yet to be completed. "So even if a successor is chosen soon, it would be several weeks before a name is submitted to the U.S. Senate, much less confirmed."

Despite Newsom’s public statements that he won’t enforce the new law, City Attorney’s Office spokesperson Matt Dorsey recently assured a group of civil rights advocates that Newsom’s comments have "no legal effect," and that Herrera intends to vigorously defend the new sanctuary law.

Representatives of 70 community groups last week showed up at the office to urge Herrera to enforce the law. "Hundreds of community members and community organizations poured our hearts into the democratic process for over a year," Cynthia Muñoz-Ramos of the St. Peter’s Housing Committee told Dorsey. " We worked hard to pass a policy to restore due process rights to undocumented youth. Our city officials must be open and accountable to us. City Attorney Herrera should advise the mayor that he cannot refuse to implement the due process policy. It’s past time to restore due process rights for all of our city’s youth. Justice delayed is justice denied."

After the meeting, Muñoz and more than a dozen community advocates told us they were frustrated by Newsom’s stance and that innocent kids were already being ripped from their families, creating deep-seated fear within the immigrant community that cooperating with local police could result in racial profiling and referral to the feds.

Angela Chan, staff attorney at the Asian Law Caucus, told us, "We agree with City Attorney Herrera’s stated intention to vigorously defend the duly-enacted, legally sound policy. It is paramount for Herrera to take immediate steps to uphold the law, including advising the mayor that he cannot refuse to implement this law."