Carlos B. (not his real name) came to the United States from Mexico when he was 10-years-old with his parents who settled in San Francisco. Smart and determined, Carlos learned to speak English fluently in one year, excelled in school and eventually earned a 3.8 grade point average at Mission High School. One day, Carlos, 14, was arrested by police for possessing a BB gun. Because he was a minor, he was taken to the Youth Guidance Center. Probation officials suspected that Carlos was undocumented and reported him to U.S. Immigration and Customs Enforcement (ICE). Carlos suddenly faced the prospect of deportation and being separated from his family.

Carlos is one of 67 children who have been referred to ICE under a new policy that requires Juvenile Probation officials to notify immigration authorities whenever a minor, suspected of being undocumented, is booked for a felony offense. The policy was instituted by Mayor Gavin Newsom last July after media reports emerged that some undocumented youth were being sent home to their countries of origin by probation officials.

Under the Mayor’s policy, an arrest and booking of a youth triggers a referral to ICE. It does not matter if the District Attorney decides to dismiss the case or if the charges are ultimately determined by the judge to be untrue.

In establishing this policy, Mayor Newsom relied on a legal opinion by City Attorney Dennis Herrera which stated that minors booked for felony crimes do not fall under the protection of the sanctuary law.

While San Francisco’s sanctuary ordinance, passed by voters in 1989, specifically excludes adults who are arrested for felony crimes from its protections, nothing is said about children who are arrested. This is where City Attorney Herrera and I differ in our legal opinions. California’s law treats crimes committed by juveniles differently than adults. Because the purpose of juvenile proceedings is to rehabilitate, not punish, the child, a crime committed by a minor is not considered a criminal conviction. Juvenile court judges are required to act “in the best interest of the child,” in deciding what should happen to the child’s case.

Federal immigration law also treats children involved in the juvenile justice system differently than adults. Juvenile court convictions, unlike some adult convictions, are not grounds for deportation.
Beyond the legal reasoning, I simply do not believe that it is fair to require ICE notification upon “booking” rather than a finding of guilt or at least probable cause. In this country, the presumption of innocence means that we do not presume a person is guilty simply because he or she has been accused of a crime.

Notifying ICE at booking has resulted in the reporting of youth who may actually be innocent of the charged offense or where the case is dismissed for lack of evidence. Over the past year, there have been two cases were youth were “booked” and subsequently referred to ICE for deportation, and the District Attorney’s office decided not to file charges. In fact, in 2006, about 30% of all charges filed in the juvenile court did not result in a finding of guilt.

Additionally, probation officers are required to report any “suspected” undocumented youth to ICE, regardless of their individual and familial circumstances. Since the implementation of the Mayor’s new policy, my office has represented at least 50 youths, some who, like Carlos B., have lived in the U.S. for years with their parents. The fact that a child has spent most of his or her life in the U.S. and have families here should at least be a relevant factor in determining whether it is in “the best interest of the child” to deport them.

As Public Defender, it is my job to ensure that the due process rights of San Franciscans are protected. Even children have the right to be treated fairly and justly under the law.

There’s a saying: “It’s easy to accuse someone, but much harder to prove it.” No child should be separated from their mother or father simply because he or she has been accused of a crime. Youth arrested for crimes should not be referred to ICE for possible deportation until a judge has determined that a felony crime was committed. This position is one that combines society’s concern for public safety, individual responsibility and basic fairness.

On the 82nd birthday of labor leader Cesar Chavez, the Board of Supervisors passed a non-binding resolution urging the adoption of the United Nations Convention on the Rights of the Child, which recognizes a child’s right to due process, including the presumption of innocence.

At the hearing, Supervisor Campos, who came to the U.S. as an undocumented 14-year-old, explained that it was not fair to automatically refer youth for deportation before a hearing on the truth of the charges was held. According to Campos, “I think we as San Franciscans should be very proud to be able to say, you know what, we do not condone criminal activities, but not condoning criminal activity doesn't mean that you assume that people are guilty simply because of what their documented status might be. That's what's at stake here.”

Immigrant youth, regardless of documentation, should be protected by the California juvenile justice system’s principles of rehabilitation, family unification, and confidentiality. It is time to reconsider San Francisco’s current policy so that undocumented youth are not presumed guilty.

For more information on the San Francisco Public Defender’s Office, visit www.sfpublicdefender.org.


Page 1 of 1