If you were to compile a list of threats to San Francisco's public safety, Oscar Martinez probably wouldn't make the cut. The quiet 15-year-old soccer player with a peach-fuzz mustache and adolescent slouch has a demeanor so laid-back it borders on spacey. He admits he gets mediocre grades, he forgets to do his homework, and is often late to class because he has trouble rolling out of bed.
So when Martinez says there's an explanation for how another kid's long foldup knife ended up in his backpack at middle school last year, you might believe he wasn't intending any harm. Not that that matters much now. The reality remains that it kicked off a chain of events that will likely result in Martinez being deported to the country he had recently fled.
Three years ago, Martinez rafted across the Rio Grande to join his parents who'd made the trip just months earlier to San Francisco, escaping, they say, gangsters in El Salvador who had threatened their lives for refusing to pay them off. Three years in the United States is long enough for Martinez to never want to go back to El Salvador, long enough for him to echo in English his parents' hope that he has "a better future" in this country. (Oscar Martinez is not his real name. It has been changed for this story because his immigration case is still pending, and the family fears retribution from the gang.)
But the knife discovery pushed Martinez into the center of one of the most explosive issues in San Francisco politics. As he recounts that day, two "supposed friends" forced him to put one of their knives into his backpack during math class. Martinez then went to the bathroom, where he saw his counselor, who called him into his office to lecture him about cutting class. The counselor remarked that the teenager's bag looked empty, and opened it up despite his protests. There was the knife — which, in San Francisco schools, means an automatic call to the police.
Since it was Martinez' first offense and no one had been hurt, the juvenile court judge dismissed the felony charge of possessing a knife at school. He kept his clean record. Just months earlier, that would have marked the end of the teen's problems. But much had changed since then: The feds discovered the city's juvenile probation department was flying adolescents back to Latin America on the city's tab. A media scandal erupted. A mayor with gubernatorial aspirations did an about-face. And a sanctuary city that used to shield kids from immigration authorities got hard on those accused of felonies.
So that's why, after questioning Martinez, a probation officer notified Immigration and Customs Enforcement (ICE). Soon after, the teen was put on a commercial flight to a federal juvenile detention facility in Seattle, hands cuffed and a weight strapped to his ankle. A crew of federal agents waited in the terminal to take him into custody. "He arrived like a terrorist," his father explained recently, knitting his eyebrows while sitting across from his son at a Mission cafe. "He's a kid!" his mom added.
The fact that children have always been treated differently than adults in the justice system is the reason that immigration activists and eight of 11 city supervisors blast the tougher policy that treats all ages the same: People arrested and booked with a felony must be reported to ICE if they are suspected of being here illegally. It's an approach that puts teenagers who paint graffiti into the same category as those who deal dope or pull a trigger. Those youths who later have their cases dismissed or are found innocent are treated the same as the guilty ones. Some who crossed the border when they were too young to remember it now face going back to a country they know little about — and making the illegal trek back to the United States again — alone.
The Board of Supervisors recently passed legislation to postpone reporting minors to ICE until after they are actually convicted of felonies to avoid situations like Martinez'. But, under advice from the city attorney that the policy could put the city at risk of a federal lawsuit, the mayor and probation department have decided not to enforce it. The verdict: Kids like Martinez will continue to be reported to ICE — whether San Francisco likes it or not.
In June 2008, Tony Bologna stopped his Honda Civic on a narrow street in the Excelsior. A gunman in a Chrysler that had been blocked from turning left opened fire on Bologna's car, instantly killing the 48-year-old youth basketball coach and his 20-year-old son, Michael, and fatally injuring his youngest son, Matthew.
Prosecutors say the alleged gunman, Edwin Ramos, then 21, was a member of the brutal street gang Mara Salvatrucha (MS-13) and was in the country illegally from El Salvador. News reports later revealed that Ramos had been a beneficiary of San Francisco's controversial former sanctuary city policy, which shielded undocumented juveniles from ICE. (Around the time of Ramos' arrest, Mayor Newsom — following a series of embarrassing stories in the Chronicle — directed local law enforcement to begin notifying ICE after making felony arrests of underage illegal immigrants.)
Ramos was convicted of a 2003 gang-related assault on Muni and of attempting to rob a pregnant woman in 2004 while a juvenile, but he had not been handed over to ICE. For critics, Ramos' smirking mug shot became the face of everything wrong with the old policy, and even San Francisco's sanctuary city law altogether.
Cue ominous TV commercials from Californians for Population Stabilization, a Southern California–based anti-immigrant group: "Illegal alien gang members get back on the street because our cops can't ask immigration status. Have sanctuary cities taken our compassion too far?"
Of course, lost in the inflamed controversy are subtleties like the fact that Ramos would have been reported to ICE under the new policy passed by the Board of Super-visors.
Immigration-rights activists argue that the policy has made San Francisco less safe. After two students at Mission High School were reported to ICE last year, one teacher says the school is trying to handle discipline problems rather than call police. Some parents who are here illegally have moved, worried they might be next in the roundup, after their teens reported their addresses to immigration authorities during questioning. "They're making the community insecure," says Hector Chinchilla, an attorney who represents youths reported to ICE. "People are going to see the police as an extension of immigration." Also, rules tailored for the worst-case scenarios can punish innocent teens. According to juvenile probation's 2008 annual report, only 57 percent of all teens booked on felonies ended up being convicted of the crime. The system raises the possibility of kids merely accused of a crime being deported.
That's exactly what happened to Jesus Cardenas Cortes in September. The 17-year-old from Mexico had been working construction jobs in San Francisco for just two months, and was walking home after dinner on 19th Street. Little did he know police were driving around the Mission District, helping a robbery and assault victim to identify his assailants.
Cortes was walking behind two strangers when the police car drove by and, according to the police report, the victim alerted the cops: "That's them! That's them!" Police arrested Cortes along with the two adults and drove him to the Youth Guidance Center, the juvenile detention facility in Twin Peaks.
Police have discretion to book many crimes like the assault charges facing Cortes as a misdemeanor or felony — although defense attorneys say that police usually go with the toughest charge, with the district attorney able to lower it later on. The police went with the felony for Cortes, as well as booking him with another felony charge for robbery. That meant the ICE policy kicked in.
Of the 150 people referred from San Francisco juvenile hall to ICE since June 2008, 114 have been taken into detention, ICE spokeswoman Virginia Kice says. Cortes was among them, even though the assistant district attorney dropped the charges against him and declared him innocent, says his public defender, Sarah Wilner. Wilner forwarded an e-mail from the prosecutor to the probation department explaining that Cortes was not involved with the crime, hoping it would somehow affect the impending deportation proceedings.
It didn't. Picked up by ICE, Cortes agreed to voluntary deportation, and was flown from Oakland to Mexico with other deportees. Cortes says he arrived home in the small town of Mixquiahuala, north of Mexico City, feeling defeated. He'd wanted to stay in the United States for five years, and send back enough money to help his mom start a business selling bed comforters, because his father is about to retire from the police force. Yet in his short stay in the United States, he'd been able to send home only $500. "I got depressed," he said in a phone call from Mexico. "When I went back, I still hadn't been able to accomplish anything."
Cortes is planning to hire a coyote and illegally re-enter the United States in the new year — heading to Utah this time, where his sister lives.
Attorneys say some teenagers who've been deported under the policy in the last year have already returned, especially those whose families and their entire lives are still here. "I'll just hear, 'So-and-so's back,'" says Laura Sanchez, staff attorney at the Central American Resource Center (CARECEN) in the Mission, who is representing a number of youths in deportation proceedings. "This is the only life they know."
Joseph Russoniello, the U.S. attorney for the Northern District of California, doesn't buy it. He says that under the old policy, the probation department used the argument that youths' families are in Latin America to justify paying for their plane tickets home. Now, "the claim is that all the families are here," he says. "It's a subterfuge, and just a part of the effort to use any device — and, if sanctuary is available, to use that as well — to avoid taking responsibility for their conduct."
San Francisco enacted the sanctuary city law in 1989 — stating that no city resources should be used for immigration enforcement unless required by law — to offer a safe haven to Central Americans fleeing civil war. It was part of a movement joined by dozens of cities across the United States, including Oakland, Los Angeles, Chicago, and New York. San Francisco city officials argued that the sanctuary ordinance would encourage illegal immigrants to report crimes to local police if they didn't have to worry about being deported. The city also wanted to distance the cops from immigration raids. Yet in order to qualify for federal funds in the early 1990s through a criminal justice program that no longer exists, the law was amended to report "any person" booked on a felony and suspected of being here illegally. The city attorney advised that it included minors in 1994, yet at some point — the probation officers' union estimates more than a decade ago — the juvenile probation department enacted a policy of shielding teens from immigration authorities.
Not only did the juvenile system not report them, it rolled out the red carpet for them to rehabilitate. Judges would assign the teens probation, and, if there were no adult guardians to pick them up, send them to group homes. They would be eligible for city-funded legal services and job placement programs through various nonprofits.
Even when the probation department and judges opted to send teens back to their homelands in Latin America, it was the gentlest of "deportations."
Without ever snitching to ICE, the probation department flew the minors home at the city's expense, with probation officers escorting them to the last stop in the United States to make sure they got on the plane.
At the time, city officials said the policy was to help youths reunite with their families without putting deportation orders on their records, which might bar them from ever legally coming back into the country.
Many of those lawbreakers protected under the sanctuary ordinance came from Honduras. In the early '90s, as part of a larger trend along the West Coast, San Francisco police started arresting young Honduran drug dealers in SOMA and the Tenderloin. Of the 252 undocumented youths detained at juvenile hall from 2005 to February 2009, 79 percent were Hondurans. Some clearly took advantage of the juvenile system's sanctuary rules. Some were adults who falsely claimed to be underage, knowing cops would take them at their word if they had no identification. The Chronicle reported last year that several youths sent to group homes in Southern California under the old policy had simply walked away from custody. While the benefits of being a juvenile are gone under the new, tougher rules, the bluffing continues. Of the 150 supposed minors reported by San Francisco's juvenile probation department in the last 16 months, 24 — or 16 percent — have turned out to be adults, ICE spokeswoman Kice says, though she added that the number is tapering off.
Yet just about everyone directly involved with the Hondurans says the juvenile crack dealers are victims themselves. Many are unaccompanied minors who are dealing crack to pay off debts to the coyotes who brought them here. "The Hondurans, that's out-and-out human trafficking," longtime Tenderloin Station Captain Gary Jimenez says. "They're more victims of it than society is [a victim] of their drug dealing."
Still, the Honduran dealers have been held up by Mayor Gavin Newsom as reason not to sympathize with youths turned over to ICE. U.S. Attorney Russoniello told SF Weekly, "Most of these guys are lone wolves and involved in drug trafficking, and people need to get ahold of themselves here." Even activists have preferred to highlight the cases of those who have family here, perhaps realizing it's a political nonstarter to stand up for drug dealers.
But anyone demonizing the dealers would probably be surprised to meet Rafael Guerrero. The optimistic young Honduran with a quick laugh, curly hair, upturned nose, and elfin face does not exude "street-worn thug." Yet he is the relic of the old policy, a teenage crack dealer shielded from deportation. He met with SF Weekly at El Paisa, a Honduran restaurant in the Mission, to explain how he ended up in the drug business, and how he got out.
When he was 14, Guerrero says he escaped from his dirt-floor house in the tiny town of Esquias to iron shirts for 12 hours a day at a clothing factory in the country's industrial capital, San Pedro Sula. After six months, he had saved $100. When he was laid off and returned to Esquias, he says two local MS-13 gangsters beat and cut him in an attempt to rob him. After he reported the incident to the police, he says the thugs threatened his life, and he feared they'd make good on their threats if he didn't leave.
Like many Honduran youths who immigrate alone, Guerrero didn't have thousands of dollars to pay a smuggler to shepherd him to the U.S. So, five years ago, he went the cheaper way — riding atop freight trains rolling north through Mexico. Migrants call it the "Tren de la Muerte," or "Death Train," because so many of them have lost limbs or even died after falling off and being run over by the wheels. Guerrero also had to pay off Mexican officials, who demand bribes from the Central American migrants all along the route. He says his uncle made it to the United States on his ninth attempt. The youngster was luckier, successfully crossing the Texan border at McAllen on his first try.
After stints painting apartments in Houston and landscaping in Los Angeles, Guerrero joined friends in Oakland, but work wasn't as easy to find. For three months, he searched for restaurant and construction jobs. If he was lucky, he could work one day a week as a day laborer. He says he was getting desperate and skinny. So he gave in to what seemed to be an easy source of income for many unaccompanied Honduran youths: having a friend introduce him to an American drug dealer to get some stash to sell.
Guerrero's first drug dealing was in the early morning hours along International Boulevard in Oakland. But after he was robbed there at gunpoint by black dealers, he decided to move. First he sold around 24th and Mission streets and then in the Tenderloin, paying "rent" to the Norteño and Sureño gangs, respectively, to sell on their turf.
Guerrero says he felt guilty selling the $20 crack rocks that he sealed in a bag and stuffed under his tongue so he could quickly swallow it if stopped by police. "At the beginning, I was embarrassed," he says. "I felt like I was selling poison, that I was killing people." Over the phone, he told his mom he was working as a day laborer: "I didn't want to tell her, because she would have started crying."
The income barely covered his $200 rent for lousy living conditions in an Oakland apartment. Dozens of young men would sleep in one room — some as young as 13 or 14, he remembered — and many of them had become addicts themselves. "Some of these kids have a situation where they can't leave," he says. "They want to leave, but they have nowhere to go. ... If they escape, then go back after they don't find work, they will hit them and even tie them up." Guerrero says he once saw two teens tied up in the garage of the apartment he lived in.
Exactly who "they" are is a mystery. Probation officials say that under the old sanctuary policy, older men would bail the kids out of juvenile hall. The men usually identified themselves as "uncles," although police suspected they were really drug runners just getting the youths back out to sell more crack on the street. Guerrero says some of them would come by his place. One helped him with rent money several times, with the understanding that Guerrero would then be obligated to buy drugs from him to sell.
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.
Campos argues that his law doesn't state that the city is not prohibiting contact: It's creating city policy of when police will report. Critics, however, say that is still restricting officers from contacting federal immigration officials. "That may be the case," Campos acknowledges, "but those kinds of statutes have survived for more than 20 years now."
So that moves the focus to the legality of the sanctuary city ordinance. "The treatment of the alleged criminal alien juveniles may be the issue where it's decided, but the more basic question is the validity of the sanctuary city itself," says Hethmon of the Immigration Reform Law Institute, which unsuccessfully sued San Francisco over issuing city IDs to undocumented immigrants last year.
Attorneys for the Bologna family, who are now suing San Francisco for negligence, say that every law enforcement official should have the right to call ICE, so the ordinance that prohibits them from doing that is against federal law. "The officer has to be able to have the tool in his pocket to be able to pick up the phone and tell ICE that they have in their custody a gang member who's also an illegal alien," says Kris Kobach, a Kansas-based former counsel to former U.S. Attorney General John Ashcroft, who is helping with the immigration aspects of the Bologna case. Enforced or not, Kobach says Campos' law "strengthens the Bolognas' claim because it shows the city is defiant in its attitude toward federal law."
As part of the lawsuit, Tony Bologna's widow, Danielle, is seeking a judge's order forcing the city to hand over illegal immigrants. "One of the reasons Danielle Bologna is so intent on bringing this case is to prevent this from happening to some other family in the future," Kobach says. "If her suit can stop the city from violating federal law and secure the safety of other San Franciscans, that's something she'd like to achieve."
On an October schoolday, nearly a year after Oscar Martinez was caught with a knife at school, the teen sat in a claustrophobic immigration courtroom instead of in class, popping his knuckles and neck. He had traded his Air Jordans for leather loafers and a pinstripe suit so many sizes too big it looked like he was about to play an adult in a school play. Martinez sat with his private immigration attorney, Hector Chinchilla, who is already handling several cases of teens reported to ICE under the policy.
Chinchilla admits Martinez has few options. He has no qualifying family members to sponsor him, and he has probably been in the country too long to qualify for asylum. His only chance appears to be "withholding of removal," a type of deportation relief for which he will have to prove he is "more likely than not" to face persecution for belonging to a social group if he is sent back to El Salvador. Immigration courts are divided on how to treat asylum claims based on fear of gangs.
Another legal obstacle is collecting evidence from abroad to corroborate the family's tale (once again, the names have been changed): the township on the outskirts of San Salvador where they lived is known as a MS-13 hotbed, and Martinez's father, Jaime, says thugs came calling to extort $1,000 a month from the family to continue operating a convenience store out of their home. Jaime refused to pay, and claims that as a result, his taxi went up in flames while it was in the repair shop in 2005. He got a restraining order against a man who kept coming by the house, threatening to kill the kids if the family didn't pay, and later received a written death threat. "I said, 'I'm not going to go on like this,'" he says. "So I told my wife we have no other option but to leave."
Once in San Francisco, the couple found work in the underground economy — Jaime in construction work, Maria cleaning houses — and Oscar attended public San Francisco schools. The family is still paying off the debt — $35,000 — to the coyotes who helped them cross the border, but had at least gained a modicum of peace.
Until, of course, their son was reported to ICE. "I felt like they'd thrown a bucket of water on me," Jaime says, recalling the December day he got a call. "To tell us that one of us has to go, I think they might as well condemn us all to death. With all the threats we received, I think it would be death for us."
Persuading an immigration judge of that is another thing. So, for now, the family prays for immigration reform and for their son to be able to stay. "We don't even want to think about it," Maria says of the possibility her son will be deported. "We're going to fight till the end."
"I know that it costs money to send for him again, but it's not about that," Jaime says. "The problem is the risk to his life."
Oscar says sometimes he'll sit in the park on his way to school and think about what will happen if he's deported, and about the possibility of making the trip back to the United States alone.
Sitting in the hallway outside the immigration courtroom, he sighs loudly and ticks off his feelings towards the situation: "Mad. Sad. Confused." And, of course, regret.
If he could go back to the day when he was bullied into carrying the knife, he says he would have told the principal. Or he would have thrown the knife away. "I know I messed up," he says. San Francisco has ensured he can't take that back.