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Judicial Watch • Fonseca v. Fong (No. CPF-07-507227) – San Francisco sanctuary policy

Fonseca v. Fong (No. CPF-07-507227) – San Francisco sanctuary policy

Fonseca v. Fong (No. CPF-07-507227) – San Francisco sanctuary policy

OCTOBER 31, 2011

This Judicial Watch lawsuit is on behalf of a San Francisco resident challenging a “sanctuary policy” of the San Francisco Police Department (SFPD) for illegal immigrants. Contrary to California law, the SFPD prohibited police officers from notifying federal immigration authorities when they arrest a person for various drug offenses whom they suspect may be an alien (legal or illegal). In response, the SFPD argued that the California statute (Health & Safety Code § 11369) requiring the sharing of such information with federal authorities is unconstitutional and, therefore, the SFPD was not bound to obey the law.The case was heard before the California Court of Appeal, First Appellate District, Division Two (Case No. A120206). Oral argument was held in San Francisco on September 16, 2008.On October 22, 2008, the Court of Appeal reversed a lower court ruling and held that the SFPD must comply with section 11369 and notify federal authorities as required by the statute. The court rejected the SFPD’s argument that it was not required to obey the law because the law because it allegedly invaded the federal government’s exclusive power to regulate immigration. Rejecting this argument, the appellate court remanded the case back to the trial court to determine if the SFPD’s policies comply with Section 11369. According to the appellate court:

…Section 11369 does not require any state or local law enforcement agency to independently determine whether an arrestee is a citizen of the United States, let alone whether he or she is present in the United States lawfully or unlawfully. Nor does the statute create or authorize the creation of independent criteria by which to classify individuals based on immigration status… All of those determinations, as well as the duty to tell an arrestee who may be in this country unlawfully to either obtain legal status or leave, are left entirely to federal immigration authorities…the statute is therefore not an impermissible state regulation of immigration.

As a result of the appellate court ruling, San Francisco is required to end its sanctuary policy that protects aliens arrested for certain drug offenses from being reported to ICE.Judicial Watch’s co-counsel, who initiated the case before the trial court, is California trial attorney David Klehm, who has more than 20 years of civil litigation and trial experience.Section 11369 of the Health and Safety Code (Section 11369) states: “[w]hen there is reason to believe that any person arrested for a violation [of any of 14 specified drug offenses] may not be a citizen of the United States, the arresting agency shall notify the appropriate agency of the United States having charge of deportation matters.” However, as Judicial Watch argued on behalf of San Francisco resident, Charles Fonseca, the SFPD prohibited police officers from complying with this law. As evidence of the SFPD’s illegal behavior, Judicial Watch quoted a statement from the San Francisco Field Office of Immigration and Customs Enforcement (ICE) that noted a “bare minimum of cooperation” between administrators of the San Francisco County Jail and ICE.”This landmark ruling strikes at the heart of the sanctuary movement for illegal aliens. San Francisco and other sanctuary cities are not above the law. This court ruling exposes the lie behind the argument that state and local law enforcement cannot help enforce immigration laws,” said Judicial Watch President Tom Fitton

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