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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.