Holding on to sanctuary
Despite changes, oft-deported suspect would go free
Much has changed in immigration policy and politics since April 2015, when San Francisco released undocumented immigrant Jose Ines Garcia Zarate less than three months before he fired the shot that killed Kate Steinle on a city pier.
Since then, San Francisco has loosened that law to allow the sheriff to notify federal officials in some cases before freeing an undocumented immigrant. City voters elected a new sheriff, Vicki Hennessy, partly in response to Sheriff Ross Mirkarimi’s refusal to contact federal agents about Garcia Zarate.
Donald Trump, as a candidate for president, seized on the incident to call for an immigration crackdown, and since taking office has sought to strip funding from the hundreds of sanctuary cities that restrict or reject cooperation with immigration officers. The House has passed a bill to expand the government’s authority to withhold such funding. It also passed a measure, nicknamed “Kate’s Law,” that would increase sentences for repeated illegal re-entry. Both bills are now in the Senate.
But despite the changes and the political pressure, if Garcia Zarate — a Mexican citizen who has been deported from the U.S. five times — or someone like him were about to be released from custody today in San
Francisco, the sheriff ’s office would still set him free without contacting immigration officers who had asked to be notified.
“The same,” Hennessy said when asked what would happen.
Based on Garcia Zarate’s record, which included convictions for drugs and illegal reentry after deportation but no violent felonies, “he still would not have fallen within those provisions” of the San Francisco ordinance that allow the sheriff to turn him over to federal agents, the sheriff said.
Those provisions allow immigration officials to be notified about an impending release from local jail if an immigrant has a conviction for a serious or violent felony within the previous seven years. But San Francisco and other sanctuary cities would be obligated by their laws to refuse to hold undocumented migrants beyond their term of custody unless immigration officials had a judicial warrant.
Immigration officials secured a warrant in Garcia Zarate’s case, but only after his arrest for the Steinle shooting in July 2015.
Supporters of sanctuary cities argue that reporting undocumented immigrants to federal agents, or otherwise helping enforce immigration law, divides their communities and actually hurts law enforcement. They say such cooperation discourages immigrants from reporting crimes to police or working with them as witnesses, for fear of deportation.
“These people are living, working, sending their kids to school in the city,” said former San Francisco Supervisor John Avalos, who sponsored the latest changes to the sanctuary ordinance last year. “If they are victims of a crime or witnesses of a crime, and they feel comfortable talking to law enforcement, they can help law enforcement do its work.”
Ira Mehlman, spokesman for the Federation for American Immigration Reform, which generally sides with Trump on immigration issues, countered that sanctuary policies defy federal law and cost lives.
If Garcia Zarate “had not been put on the streets, in all likelihood Kate Steinle would still be alive,” Mehlman said. He said the San Francisco jury’s verdict Thursday “should be a signal for Congress to act.”
Garcia Zarate’s lawyers argued that the shooting was an accident, and the jury acquitted him of murder, manslaughter and assault. It convicted him only of being a felon in possession of a gun.
Trump responded with tweets calling the verdict a “travesty of justice” and renewed his call to “BUILD THE WALL!”
Garcia Zarate awaits sentencing on the gun possession charge, but with the two-plus years he has served since his arrest, he is unlikely to spend much more time in state custody. Under the warrant held by immigration officials, he would then be returned to U.S. custody to face accusations of violating his federal “supervised release” by committing a crime and possessing a gun, punishable by two more years behind bars. Deportation would follow.
The warrant is what makes the situation different from what happened in April 2015, when San Francisco let Garcia Zarate go.
He had just served 46 months in a U.S. prison for illegal reentry from Mexico. Rather than deporting him, federal officials honored a San Francisco Sheriff ’s Department request and transferred him to local custody to face a 20-year-old local marijuana charge, which city prosecutors promptly dismissed.
Federal officials could have obtained a warrant then that would have prevented Garcia Zarate’s release, noted Bill Hing, a University of San Francisco immigration law professor. They would merely have had to persuade a U.S. magistrate that there was “probable cause that he’s deportable,” he said. “San Francisco cannot ignore” a court warrant.
But Hing said immigration officials rarely bother to go to court, and instead simply ask a local agency to hold someone wanted for possible deportation until they arrive.
Such requests are known as detainers. Local compliance with them varies nationwide — a recent Texas law, currently blocked by the courts, would require all local governments to honor federal detainers. A California law effective in January would prohibit compliance except for specific categories of felons.
Holding inmates on detainers beyond their release date also raises constitutional concerns.
Honoring detainers means authorities are holding someone without having obtained a court order based on probable cause that the person has committed a crime. So far, “every court decision has said these violate the Fourth Amendment” ban on illegal seizure, said Saira Hussain, an attorney with Advancing Justice-Asian Law Caucus in San Francisco.
Mehlman, of the Federation for American Immigration Reform, contended that Trump administration detainer policies meet constitutional standards, and noted that the administration has promised to step up immigration enforcement in localities that refuse to comply.
He also derided San Francisco’s position that it lacks authority to keep immigrants like Garcia Zarate in custody so that federal officers can pick them up.
“They’re trying to claim their hands were tied, when they tied their hands themselves,” Mehlman said.
Hing said the administration and its supporters are trying to blame sanctuary cities for the government’s unwillingness to take legal steps such as obtaining warrants. And former San Francisco Supervisor David Campos said that fellow supervisors had responded sensibly to Steinle’s death by passing an ordinance he sponsored that made it a crime to leave an unlocked gun in a motor vehicle.
The gun used in the killing had been stolen in San Francisco from a federal Bureau of Land Management ranger’s car. The burglary has never been solved. Garcia Zarate’s attorneys say he found the gun along the waterfront and that it accidentally went off, firing a bullet that richocheted off the pavement and hit Steinle.
“If there is fault to go around, one of the responsibilities lies with the federal official who left his gun unattended in his vehicle,” said Campos, now the Democratic Party chairman in San Francisco. “This is a gun control issue as much as an immigration issue.”