SAN FRANCISCO – If the San Francisco sheriff's plan becomes reality, illegal immigrants arrested for petty crimes won't be held in jail longer than necessary, even if federal immigration agents may want them detained for possible deportation.
Instead, starting Wednesday, deputies will treat those eligible for release just like U.S. citizens: They will be cited to appear in court.
City officials, however, aren't so sure about Sheriff Mike Hennessey's plan.
The new policy is his attempt to comply with a city law that prevents police from aiding federal authorities in non-felony crimes and a U.S. law that requires authorities to share fingerprints with immigration agents.
"I'm in a position where I'm trying to enforce a local law as well as not violate the federal law and this is the 'in-between,'" he said. "It's a difficult area to tread on because emotions run very high here in California and throughout the country on immigration issues."
Under Hennessey's policy, illegal immigrants who commit misdemeanors, such as disorderly conduct, trespassing or shoplifting, will not be held while the U.S. Immigration and Customs Enforcement (ICE) checks their status through a fingerprinting monitoring program.
Hennessey said the change is meant to coincide with the city's "Sanctuary City" law, which aims to provide refuge for illegal immigrants.
Mayor Ed Lee's office did not receive advance notice of the policy change, said Christine Falvey, Lee's press secretary, in a prepared statement.
"We have reached out to federal authorities to determine if this new policy contradicts federal law," Falvey said. "We are awaiting clarification."
The sheriff's new policy comes as the California Assembly on Thursday approved a bill to revise the state's agreement on using the federal Secure Communities program. The measure, which would allow counties to opt out, now moves to the state Senate.
San Francisco and nearby Santa Clara county have sought permission from the federal government to opt out of Secure Communities.
Hennessey said his policy is similar to San Miguel and Taos counties in New Mexico. He said San Francisco's policy will protect public safety because immigrants would be more willing to report crimes if they didn't fear arrest and possible deportation.
ICE Spokeswoman Virginia Kice said Hennessey's decision is "unfortunate." In San Francisco County, ICE has taken custody of 731 deportable immigrants since Secure Communities began in June 2010, Kice said.
Nearly 40 percent had prior criminal convictions for felonies or multiple misdemeanors, she added.
Angela Chan, an attorney with the Asian Law Caucus and a San Francisco Police Commission member, said 68 percent of the people deported under the Secure Communities program in California did not commit serious crimes.
"That puts a lot of people at risk," Chan said. "That's why there's such uproar over this program."
Hennessey said he learned that keeping immigrants with ICE detainers behind bars is a courtesy and not mandatory after meeting with Secure Communities director David Venturella late last year.
Hennessey's move is drawing some sharp criticism.
"The borders will never be secure as long as places like San Francisco lay out the welcome mat," said Tom Fitton, president of Judicial Watch, a Washington, D.C.-based legal advocacy group that is suing the city over similar immigration issues.
"These policies put illegal immigrants above the law," Fitton said.
Fitton cited a 2008 incident in San Francisco where three members of a family were shot to death by a gang member who was an illegal immigrant and had been released from custody as a juvenile.
"I can guarantee you people will die by this decision," Fitton said.
Addressing the Assembly before its vote last week, San Francisco Assemblyman Tom Ammiano said immigration officials were well aware of the gang member's status.
"In fact, that assailant was reported to ICE, and you know what happened? ICE did not act on that complaint. That's what happened. Because they were probably out busting a crossing guard, or arresting a mother on her way to work at a hotel," Ammiano said.
Secure Communities began in 2008 as an initiative to identify and deport illegal immigrants who have committed serious crimes as local authorities share their fingerprints with the Department of Homeland Security.
The program operates in over 1,300 jurisdictions in 42 states. ICE has since removed more than 77,000 criminal aliens including more than 28,000 offenders with prior convictions for serious or violent offenses, such as murder, rape and child sexual abuse, Kice said.
And the program will be mandatory for every state and county by 2013, Homeland Security secretary Janet Napolitano recently said.
However, several other states including Illinois, Maryland, Massachusetts, New York, and Washington have complained that Secure Communities doesn't just deport convicted felons. Crime victims and witnesses could be swept up, too.
Earlier this month, Illinois Gov. Pat Quinn announced that the state intends to withdraw from the program, calling it "flawed." He said nearly a third of all illegal immigrants deported under the program were not convicted of any crimes.
In Minnesota, legislators are currently debating on whether to become the 43rd state to join Secure Communities.
Kice, the ICE spokeswoman, said 71 percent of the illegal immigrants removed or returned through Secure Communities had criminal convictions. She said 29 percent were non-criminal immigration violators, including those who had been removed earlier and visa violators.
Hennessey said his policy has received mixed public reaction. While he expects some harsh feedback, he doesn't see it stopping.
"Believe me, if I've done something wrong, the federal government will sue to stop me. And I'm not hearing anything on that level," Hennessey said. "I don't want to break the law."