Charles Washington’s wife and his Australian-born 13-year-old stepson (not pictured)
won a 60-day reprieve yesterday from deportation proceedings following a reexamination
by federal immigration authorities of the family’s legal status.
Photos by Luke Thomas
By Hope Johnson and Luke Thomas
March 4, 2010
By now, most of us are aware of the plight of the Washington family. Until yesterday, native San Franciscan Charles Washington, a U.S. citizen, faced the deportation of his Australian wife and two stepsons, ages 13 and 5 years, by the end of this week.
Following the family’s press conference Monday and the resulting media attention surrounding the case, ICE yesterday granted the Washingtons a 60 day reprieve from deportation, proving immigration laws can be applied judiciously and humanely on a case-by-case basis.
“The Washington family is grateful for the extension of the departure date,” said Asian Law Caucus staff attorney Angela Chan, who is representing the Washingtons. “We will work hard to get their green card application processed as soon as possible. We are very appreciative that federal authorities have been responsive to the family’s situation in this case.”
Washington’s 13-year-old stepson struck another child during an after-school program and took 46 cents from him. The victim’s parents reported the incident to police who subsequently arrested the 13-year-old and charged him with robbery, assault and extortion. Because the youth was suspected of being undocumented, his charges were upgraded to felonies which, in turn, qualified him under Mayor Gavin Newsom’s interpretation of federal law for referral by the San Francisco Juvenile Probation Department to U.S. Immigration and Customs Enforcement (ICE) .
ICE subsequently ordered the deportation of the youth and his mother despite the mother’s marriage to a U.S. citizen – providing her and her Australian-born son a legal basis for modification of their legal status.
Intense focus on the legality of Mrs. Washington’s immigration status is typical in undocumented status cases but distracts from the fact ICE is being provided an opportunity to deprive people of constitutionally protected rights. Faced with swift deportation and no trial, members of the Washington family had not been provided equal protection under the law, a constitutional right guaranteed by the Fourteenth Amendment:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (emphasis added)
When the State of Texas attempted to withhold funding for the education of undocumented children, the U.S. Supreme Court ruled the policy violated the children’s rights under the Fourteenth Amendment. The court held the Fourteenth Amendment applied to undocumented children because they were “people” in “any ordinary sense of the term” who are under the jurisdiction of the State. (See, Plyler v. Doe, 457 U.S. 202 (1982)).
Thus, anyone detained in the US is entitled to the rights and protections provided under the Fourteenth Amendment.
Providing equal protection under the law requires every individual receive due process, a right guaranteed by the Fifth and Fourteenth Amendments. Due process is not one set of standard procedures but broadly interpreted as the right of the accused to have an opportunity to affect the outcome of judgment. You know, having your day in court so you understand the charges against you, are allowed to face your accuser, have a chance to tell your story, and, only then, adjudged based on the evidence established at trial.
Although the decision by ICE to postpone the deportation date in the Washington case is commendable, the decision to terminate due process rights to a hearing of the facts should not rest solely with a law enforcement agency. The very opposite is true. Equal protection and due process are intended as controls over potential abuses in the enforcement of the law.
It is Mayor Gavin Newsom’s chosen interpretation of San Francisco’s Sanctuary City Policy that provides ICE, wittingly or not, this sole power to potentially violate Fourteenth Amendment provisions. In the case of the Washington family, the 13-year-old son was turned over to ICE before he was officially charged and adjudicated by the system that had accused and detained him. Without due process, the charges are merely accusations and are not a finding of fact. ICE ordered the youth deported before an opportunity for the right of due process was adequately afforded. His mother’s application for a green card had been suspended because ICE had the power to decide she must also be deported without a hearing.
The Board of Supervisors amended the city’s Sanctuary Ordinance in November to address violations of constitutionally-afforded due process rights and protections to undocumented minors. The amendment, introduced by Supervisor David Campos and passed by a veto-proof supermajority, provides minors the opportunity to be processed through juvenile courts with referral to ICE occurring on the condition the accused is found guilty of a felony in a court of law. Of course, San Franciscans don’t want felons to be allowed to remain in the country illegally. But, as citizens, we all have a vested interest in having the judiciary make openly documented, case-by-case rulings regarding felonies, rather than allowing for an assumption of guilt.
Mayor Newsom refuses to enforce the new Sanctuary Ordinance amendment, leaving important questions unanswered in immigration cases. Without ICE changing the Washington’s deportation date, there would have been no investigation of very serious allegations against a U.S. citizen’s stepson. Moreover, a felony charge of extortion for 46 cents appears grossly excessive, warranting further review. Witnesses to the alleged crime would be interviewed to determine whether the charges were assigned based on hearsay, and further investigation into the mother’s eligibility for legal status would have determined that she and her son are eligible for US residency, thereby preserving the concept of family unity previously considered important in determining and applying immigration law.
Newsom spokesperson Tony Winnicker said the original Sanctuary City Policy protects thousands of “hard working, law abiding residents” from harassment and fear.
“Doing what Supervisor Campos wants us to do puts city staff at risk of being held accountable for violating federal immigration law and puts at risk the entire Sanctuary City Ordinance that protects thousands of undocumented people,” Winnicker said responding to FCJ inquiry.
San Francisco Unified School Board President Jane Kim disagrees Newsom’s policy protects families from fear and harassment and believes Campos’ amendment is constitutional.
“We’ve seen how the change at Juvenile Probation, which is only as of August 2008, has really been used as a very blunt tool to separate families, regardless of conviction, regardless of the offense, regardless of so many other circumstances,” Kim said. “We need due process for our students.”
“We don’t have a legal obligation to turn kids over. We don’t have a legal obligation to ask about someone’s immigration status,” Campos said when asked to comment on the separation of families as an unintended consequence of Mayor Newsom’s Sanctuary policy.
“We recognize that if someone does engage in criminal activity, that there is a legal obligation to report,” explained Campos. “But the analysis of whether something is illegal or not is something that your average person is not equipped to make. That’s why the law, as written, leaves it up to a judge to make that determination, looking not only at the facts but also the law.”
Supervisor David Campos discusses due-process protections afforded by the US Constitution.
Campos has requested the Juvenile Probation Department provide a report at a scheduled meeting of the Rules Committee today detailing its experience with undocumented youth in light of Newsom’s refusal to enforce Campos’ Sanctuary Ordinance amendment. He wants to be sure the city’s resources are being used effectively while preserving the concept of sanctuary.
“Why wouldn’t San Francisco set up a policy that is consistent with the basic principles as outlined in the Constitution and as interpreted by the United States Supreme Court?” asked Campos.
The Hunger Site
March 5, 2010 at 5:44 pm
campers,
For a first hand feel of the case tune into the yet to be archived hearing before the Board’s Rules Committee yesterday. It’s 3-4-10 and Item #5. The first person at Public Comment is the stepfather, Muni driver, Washington. His testimony is riveting. First, Newsom trying to take credit for his family getting a second chance to file for Green Cards is obscene. Newsom’s people under his orders did everything they could to get them out of the country as fast as possible. With no legal (required by the Campos legislation) due process at all.
Second, and perhaps most important, the testimony of a number of people describing the Juvenile Probation interviews paint a picture of a scheme to gain information from families who have not been hooked up with lawyers and their subsequent entrapment. Eric Safire says that no kid or their family should say a word to Juvenile Probation until the family has a lawyer.
Bottom line? The Moderate battle plan is set. They’re going after immigrants, the poor and the Muni union. Sounds pretty Republican to me.
h.
March 5, 2010 at 1:17 pm
The focus of the article is to understand that we need a due process hearing to determine all the facts of the case. I urge you not to assume guilt based on any media report until there is a trial or finding of fact in a court of law system. Remember when security guard Richard Jewell was falsely implicated in the media of the Atlanta Olympic bombings but was innocent? Due process protects all people, including you, from others assuming guilt.
FCJ is calling for a finding of fact here to determine what happened. The other child received proper protection under the law – when his parents called police, the 13-year-old was questioned. Now we need to have adjudication by the court to find guilt or innocence but deportation is punishment before finding.
This article is about protection from assumption of guilt. You’re jumping ahead to the punishment phase. Appropriate punishment for the alleged crime or immigration status should be based on a finding of guilt through due process, not a “mob rules” or “Richmondman thinks he’s guilty” opinion.
Hope
March 5, 2010 at 12:12 pm
Luke: I foolishly accepted your words as fact in making my post. Your article states “Washington’s 13-year-old stepson struck another child during an after-school program and took 46 cents from him.” I apologize for not questioning your “facts”. My purpose was to bringout a point missing from this article. Violence was perpetrated on a youth, and that the focus of reporting here is misplaced – that the person who (according to you) perptrated this violence is the victm, without regard to the true victim of violence.
March 5, 2010 at 10:45 am
Richmondman, your post illustrates the very point of this article. Without due process, those accused of a crime are subject to a presumption of guilt, as you have presumed without the benefit of evidence to support your assumption.
March 5, 2010 at 10:25 am
Not a word about the pre-teen that was beaten for his or her money. School safety is a bigger issue than the immigration status of a single child. School violence such as was perpetrated by this teen is rampant in SF schools, especially at the grammer schools and middle schools. It directly leads to increasd truancy and flight to private schools. This 13 year old criminal does not deserve our sympathy, nor do his parents. The victim of this violence does.
March 4, 2010 at 8:25 pm
Thank you for your coverage of this human rights issue. I find Newsom’s response worthless, and it is frightening to think that even though he is now a father, he still has no compassion for children. As a mother of three, all I can say is that this 13 year old is not a criminal, but rather a typical teenager. Sure he made a mistake. but most children at one time or another have done something like what he did; without naming names, I myself could have been deported if my children and i were not US citizens. His actions in no way rise to the criminal charges they tried to inflict on him, and should in no way ever got him and his family on the ICE radar. Shame on those that did this to this family. ICE is a vile institution. David Campos and the Asian Law Caucus are my heroes!
March 4, 2010 at 2:21 pm
The good fortune of the Washington family does not validate Newsom’s policy. Asian Law Caucus attorney Angela Chan and Supervisor Campos made it clear at today’s Juvenile Probation Dept. Rules hearing that the Obama administration had to intervene to help the Washingtons limit the damage created by Newsom’s refusal to implement the new law.
March 4, 2010 at 1:38 pm
Newsom responds:
MAYOR GAVIN NEWSOM’S STATEMENT ON THE CITY’S SANCTUARY CITY POLICY
“I have long supported our sanctuary policy and a range of policies and programs designed to assist our immigrant community. I believe San Francisco continues to be an international leader with our efforts to protect immigrants in our community. However, the sanctuary ordinance as originally conceived and adopted was designed to protect all residents of our city, not as a shield for felons and criminal behavior. I will not put City staff, our sanctuary city policy and thousands of residents at risk to shield felony criminal behavior by a few.
Immigration and Customs enforcement is a federal responsibility. San Francisco cannot be the arbiter of immigration cases that take place within the City. That’s why many other counties in California have a similar policy of reporting suspected juvenile felons to Immigration and Customs Enforcement at the booking stage.
The recent example of the Washington family validates that our current policy is appropriate. Juvenile Probation officials report undocumented felony arrests to Immigration & Customs Enforcement, and Immigration & Customs Enforcement officials determine the appropriate response. In this case, once President Obama’s Immigration and Customs Enforcement office became aware of the exceptional circumstances around the case, they took commendable action to ensure that the young boy and his family were given time to resolve their residency status.
San Francisco’s Sanctuary Ordinance continues to strike the appropriate balance between offering a welcoming hand to our immigrant community and protecting the public safety of law-abiding residents of our City.â€