[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
NEW YORK CITY'S `SANCTUARY' POLICY
AND THE EFFECT OF SUCH POLICIES
ON PUBLIC SAFETY, LAW ENFORCEMENT,
AND IMMIGRATION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
BORDER SECURITY, AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
FEBRUARY 27, 2003
__________
Serial No. 4
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Immigration, Border Security, and Claims
JOHN N. HOSTETTLER, Indiana, Chairman
JEFF FLAKE, Arizona SHEILA JACKSON LEE, Texas
MARSHA BLACKBURN, Tennessee LINDA T. SANCHEZ, California
LAMAR SMITH, Texas ZOE LOFGREN, California
ELTON GALLEGLY, California HOWARD L. BERMAN, California
CHRIS CANNON, Utah JOHN CONYERS, Jr., Michigan
STEVE KING, Iowa
MELISSA A. HART, Pennsylvania
George Fishman, Chief Counsel
Lora Ries, Counsel
Art Arthur, Full Committee Counsel
Cindy Blackston, Professional Staff
Nolan Rappaport, Minority Counsel
C O N T E N T S
----------
FEBRUARY 27, 2003
OPENING STATEMENT
Page
The Honorable John N. Hostettler, a Representative in Congress
From the State of Indiana, and Chairman, Subcommittee on
Immigration, Border Security, and Claims....................... 1
The Honorable Sheila Jackson Lee, a Representative in Congress
From the State of Texas, and Ranking Member, Subcommittee on
Immigration, Border Security, and Claims....................... 3
The Honorable Lamar Smith, a Representative in Congress From the
State of Texas................................................. 9
WITNESSES
Mr. John Feinblatt, Criminal Justice Coordinator, City of New
York
Oral Testimony................................................. 10
Prepared Statement............................................. 12
Mr. Michael J. Cutler, former Senior Special Agent, New York
District Office, Immigration and Naturalization Service
Oral Testimony................................................. 13
Prepared Statement............................................. 15
Mr. John Nickell, Officer, Houston Police Department
Oral Testimony................................................. 17
Prepared Statement............................................. 18
Ms. Leslye E. Orloff, Immigrant Women Program, NOW Legal Defense
and Education Fund
Oral Testimony................................................. 20
Prepared Statement............................................. 23
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Executive Order 124, City Policy Concerning Aliens, New York City 4
General Order, Houston Police Department......................... 58
Immigration and Naturalization Service Memo...................... 61
APPENDIX
Material Submitted for the Hearing Record
The Honorable Sheila Jackson Lee, a Representative in Congress
From the State of Texas, and Ranking Member, Subcommittee on
Immigration, Border Security, and Claims....................... 67
The Honorable John Conyers, Jr., a Representative in Congress
From the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 68
NEW YORK CITY'S `SANCTUARY' POLICY AND THE EFFECT OF SUCH POLICIES ON
PUBLIC SAFETY, LAW ENFORCEMENT, AND IMMIGRATION
----------
THURSDAY, FEBRUARY 27, 2003
House of Representatives,
Subcommittee on Immigration,
Border Security, and Claims,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 9:07 a.m., in
Room 2237, Rayburn House Office Building, Hon. John Hostettler
[Chairman of the Subcommittee] presiding.
Mr. Hostettler. The Subcommittee will now come to order.
On December 19, 2002, a 42-year-old mother of two was
abducted and forced by her assailants into a hideout near some
railroad tracks in Queens, New York. She was brutally assaulted
before being rescued by a New York Police Department canine
unit.
The NYPD arrested five aliens in connection with that
assault. According to records that the Judiciary Committee has
received from the INS, four of those aliens entered the United
States illegally. Three of those four had extensive arrest
histories in New York City. The fifth alien, a lawful permanent
resident, also had a criminal history prior to the December 19,
2002, attack.
Despite the criminal histories of the four aliens, however,
it does not appear from the records that the Committee has
received that the NYPD told the INS about these aliens until
after the December 19 attack.
These heinous crimes prompted extensive public discussion
of whether New York City police were barred from disclosing
immigration information to the INS, a policy that may have
prevented the removal of these aliens prior to the December 19
attack.
Some suggested that the only reason that the three illegal
aliens were in the United States, despite their extensive
arrest histories, was because the NYPD officers who arrested
these aliens previously were barred by a so-called
``sanctuary'' policy from contacting the INS. That policy,
critics claimed, prevented NYPD officers from contacting the
INS when they arrested an illegal alien.
We will examine New York City's policy on the NYPD's
disclosure of immigration information to the INS. New York's
Executive Order, or E.O. 124, barred line officers from
communicating directly with the INS about criminal aliens. That
executive order was issued by Mayor Ed Koch in 1989 and
reissued by Mayors Dinkins and Giuliani.
Two Federal provisions, both of which were passed in 1996,
preempted this executive order. In particular, section 642 of
the Illegal Immigration Reform and Immigrant Responsibility Act
bars States and localities from prohibiting their officers from
sending immigration information to the INS. New York City
challenged that provision in Federal court and lost.
We will examine whether New York City continued E.O. 124,
amended it, or scrapped it altogether. We will also examine
what guidance the city has sent to its officers on the street
about reporting criminal aliens to the INS.
At this hearing, the Subcommittee will also explore what
effect any New York City sanctuary policy had on the fact that
the three illegal aliens with arrest histories had not been
deported. We will also examine the INS's responsiveness to the
information that it receives from New York City about arrested
criminal aliens if, in fact, the INS does receive such
information. In addition, we will examine similar policies that
other localities have implemented.
In particular, Officer John Nickell of the Houston Police
Department will discuss that department's policy concerning
officer contacts with the INS about criminal aliens. That
policy bars Houston officers from contacting the INS about
suspected illegal aliens, unless the suspected illegal alien is
arrested on a separate criminal charge other than a class of
misdemeanors ``and the officer knows the prisoner is an illegal
alien.''
Significantly, despite this knowledge, requirement for
contacting the INS, Houston officers are barred from asking
arrested criminal suspects their citizenship status.
The Subcommittee will assess the effect that such policies
have had on law enforcement, immigration enforcement, and
public safety as well as their consistency with Federal law.
Joining us today are four witnesses. First of all, John
Feinblatt is the criminal justice coordinator for the City of
New York. He received his law degree from Columbus School of
Law at Catholic University, and his bachelor of arts degree
from Wesleyan University in Connecticut. He has served as a
criminal defense attorney in New York, executive director of
victim services, and director of the Midtown Community Court
and the Center for Court Innovation.
Michael Cutler is a retired senior special agent with the
Immigration and Naturalization Service, New York District
Office. He received his bachelor of arts degree from Brooklyn
College and the City University of New York in 1971 before
joining the INS that same year as an immigration inspector at
JFK airport. He also served as a green card adjudicator before
becoming an INS criminal investigator, working with the Israeli
national police and the FBI.
He was the INS representative to the Unified Intelligence
Division of the DEA in New York. Finally, in 1991, Mr. Cutler
was assigned to the Organized Crime Drug Enforcement Task
Force. Mr. Cutler last testified before this Subcommittee as a
witness for the minority in March 2002.
John Nickell is an officer with the Houston Police
Department. Officer Nickell has served with the Houston Police
Department for 11 years, specializing in DWI detection and drug
recognition enforcement. He served 6 years in the United States
Marine Corps and is a Desert Storm veteran.
Ms. Leslye Orloff is the director of the Immigrant Women
Program for the National Organization for Women's Legal Defense
and Education Fund. She received her law degree from UCLA, and
her bachelor of arts degree is from Brandeis University. She
has previously worked as the director of the Latino Project at
the George Washington University National Law Center, the
director of the Clinica Legal Latina, and director of Ayuda's
national policy program. She has also written and testified
extensively.
Before I go to the witnesses, I would like to now turn to
the Ranking Member of the Subcommittee, Ms. Jackson Lee, for
any opening remarks she may have.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
As we begin the 108th Congress with the very first hearing
for our Subcommittee, I want to express to you my belief that
we'll have an opportunity to work together and work together on
issues and commonality for the good of this Nation. And as
well, hopefully, to reflect the values that we both have,
though they may be distinctive, that we do have the
responsibility to govern and oversee the very effective
policies of immigration laws here in the United States, many of
which are reminding us that we are a Nation of immigrants as we
are a Nation of laws.
And so I look forward to the challenges that we will have,
and I hope that as we proceed, even in our different
perspectives, we'll have an opportunity to be able to serve
this Country and present very effective resolutions to some
problems that we will face.
This morning, obviously, we are pursuing an issue that
needs addressing. And certainly, we are told of accounts, many
accounts, that deal with immigrant issues and the criminal
system.
In particular, we are aware of an incident that occurred in
New York--Queens, New York, in particular--that an alleged
group of young and homeless men surrounded a couple sitting on
a bench in an isolated part of Queens, New York. And the
allegations of a criminal incident that occurred where they
beat and robbed the man and raped the woman.
Apparently, it was alleged that four of the men were
undocumented aliens from Mexico who had been arrested
previously.
One of the questions for this hearing, as was stated, is
whether a New York City policy prevented the police involved in
the previous arrest from reporting the men to the Immigration
and Naturalization Service.
The policy in question is set forth in Executive Order No.
124, which was issued by New York Mayor Ed Koch on August 7,
1989. It is entitled, ``City Policy Concerning Aliens.''
[The New York Executive Order follows:]
This order prohibits the transmission of information about
an alien to the Immigration Service. But the prohibition has
three exceptions, one of which is for the situation in which
the alien is suspected of engaging in criminal activity. And I
repeat that again. There is an exception. The police did have
discretion.
This order, therefore, did not prevent the police from
reporting the homeless men to the Immigration Service when they
were arrested previously. The pertinent issue regarding that
case is whether New York Police Department should have been
required by Federal law to report the homeless men to the
Immigration Service.
I believe it is imperative to assess the challenges that
local police have. They have enormous challenges. And so the
question is whether or not you add to them the responsibility
of enforcing immigration law.
But when we ask that question, we have to look to the issue
of whether or not, by definition, immigration equates to either
terrorism or criminal activity.
I think the statistics would prove that that is not the
case, so discretion is appropriate. That means that when there
is suggestion of criminal activity, when there is any
activity--whether it be misdemeanor level or otherwise--and
they are engaged in a criminal activity, discretion does come
about.
We have to realize that our immigrants do many things. They
work for us. They live in our communities. They provide police
officers with insight and information about criminal activity
going on in their particular communities. They speak,
sometimes, two languages. If they've learned the English
language, which they will and eventually do, and therefore are
able to provide information because they are bilingual or maybe
even multilingual.
Immigration law is a complicated body of law that requires
extensive training and expertise. It is also not a body of only
criminal law or criminal law at all. It is a civilian body of
law. It is a law that deals with immigrants accessing the
process of citizenship.
Local law enforcement officials do not have the training
and expertise that is necessary to determine who is presently
lawfully in the country and who is not.
Community-based policing is one of the most powerful law
enforcement tools available. I know for a fact that it is
utilized in New York. I know for a fact it is utilized in
Houston. It is effective.
Police get to understand and know the community, and
people, by their very nature of wanting to be law-abiding--no
matter who they are, immigrant or citizen--come to respect and
admire the police and provide them with information to help
them solve cases and problems.
By developing strong ties with local communities, police
departments are able to obtain valuable information that helps
them to fight a crime, even in a bilingual immigrant community
or a single-language immigrant community. The development of
community-based policing has been widely recognized as an
effective tool for keeping kids off drugs, combating gang
violence, and reducing crime rates in neighborhoods around the
country.
In immigrant communities, it is particularly difficult for
the police to establish the relationships that are the
foundations for such successful police work. Many immigrants
come from countries in which people are afraid of police who
may be corrupt or even violent, and the prospect of being
reported to the Immigration Service would be further reason for
distrusting the police here in the United States of America.
In some cities, criminals have exploited the fear that
immigrant communities have of all law enforcement officials,
and certainly that should not be the case. For instance, in
Durham, North Carolina, thieves told their victims in a
community of migrant workers and new immigrants that if they
called the police they would be deported, and they may be--may
have been under legitimate agricultural visas and provisions to
be in this Country.
Local police officers have found that people are being
robbed multiple times and are not reporting the crimes because
of such fear instilled by robbers. These immigrants are left
vulnerable to crimes of all sorts, not just robbery.
In 1998, Elena Gonzalez, an immigrant in New Jersey, was
found murdered in the basement of her apartment. Friends of the
woman said that the suspected murderer, her former boyfriend,
threatened to report her to the INS if she did not do what she
was told.
We realize that there are sex slaves. There are young women
who are brought into this country and held for months and years
at a time, because I know that they are fearful of the police
as well.
Many communities find it difficult financially to support a
police force with the personnel and equipment necessary to
perform regular police work. Requiring State and local police
forces to report to the Immigration Service would be, I
believe, an imbalanced, misdirected use of these limited
resources.
Remember, it is important to note that the police have
discretion, that as they encourage and become familiar and
involved with the immigrant community, as the police forces are
diversified with Hispanics, African Americans, Asians,
individuals from the Muslim community, Arab community--those
are individuals who are men and women who believe in upholding
the law.
Let them become familiar with these neighborhoods, and I
can assure you that crime will come down and problems will be
solved.
The Immigration Service has limited resources, yes. But as
we look toward this new year--the Homeland Security Department,
the Justice Department--we know that we'll be refining these
resources and adding training to these particular law
enforcement agencies as we give more dollars to the first
responders.
Let us be reminded of the terrible, horrific act of the
snipers here in this region and the information that was
important that was given to solve those problems by immigrants
who were first allegedly targeted as the perpetrators, and it
was not the case.
The immigrant service does not have the resources it needs
to deport dangerous criminals, prevent persons from unlawfully
entering or remaining in the United States, and we must give
them those resources. And we need to have the INS with the
resources that it needs to enforce immigration laws in the
interior of the country.
That is what we will be working on. That is an important
responsibility, and that is a responsibility that I support.
Having to respond to every State and local police officer's
report of someone who appears to be an illegal alien would
prevent the Immigration Service from properly prioritizing its
efforts and working to ensure that its major work of getting
those dangerously in our Country deported would be delayed.
Local police can and should report immigrants to the
immigration service in many situations. I encourage them to do
so. With that kind of process and policy, we can work
collectively together, keeping our responsibilities as a
Federal Government and keeping our responsibilities to our
local constituents in the work that the local official should
be doing. The decision to contact Immigration Service, however,
should be a matter of police discretion and not a Federal law
decision.
I would simply say, Mr. Chairman, that this will be an
important hearing.
I welcome Mr. Nickell to this particular hearing, and he
certainly is a very able representative of the Houston Police
Department, of which I count many of them as my friends.
And I want to acknowledge publicly the greatest respect I
have for the great work that you do.
And I know that as I listen to you, I will be attentive and
certainly know that the police department in my community has
been able to work within the laws of this land, with the
Federal laws as they are, and your laws using your discretion,
your expertise, and of course, your commitment to the community
as the basis of serving us.
Thank you very much for your service.
Mr. Hostettler. Thank you, Ms. Jackson Lee.
The Chair now recognizes the gentleman from Texas, Mr.
Smith, for an opening statement.
Mr. Smith. Thank you, Mr. Chairman, and I won't take up the
whole time. I just really want to congratulate you on being
selected to chair such an important Subcommittee.
You know and we all know that immigration is a complex,
sensitive, and sometimes controversial issue. And I can't think
of anybody better to serve at the helm of this Subcommittee
than you. So I'm looking forward to many hearings, such as the
one we're having today.
And I might say also I think immigration is sometimes
underestimated as an issue. But I think today is a typical day.
There were three immigration articles in the two Washington
papers. And so I think immigration is becoming more and more
recognized as an issue that affects the lives of every single
American every day, and I think that that's going to give us
plenty to have hearings on in the future.
I also want to compliment you on this particular hearing,
and it's very obvious from the memo that we received that a lot
of work and preparation has gone into this hearing, and that's
a tribute to you as well.
Finally, I noticed that today's hearing is on the general
subject of criminal aliens. In other words, individuals in the
country illegally who have committed serious crimes. And I
remember from past hearings we've had in the last couple of
years, a figure that is absolutely astounding to me, and that
is that approximately 20 percent of all Federal prisoners today
are, in fact, illegal aliens.
And that may even be a low figure because they are self-
identified, and a lot of people might not really say that
they're in the country illegally or whatever. But I think if
the general American people knew that 20 percent of our Federal
prisoner population were illegal aliens, I think there would be
a revolt against the immigration policies that contribute to
that situation.
And clearly, if we want to do something about the crime
rate in America, one way to do something about that crime rate
is to have more secure borders and have fewer individuals who
are in the country illegally who then commit crimes. And if you
take the Administration's word for it that there are 8 million
to 9 million illegal aliens in the country today, that's about
3 percent of the population.
Well, 3 percent of the population is committing 20 percent
of the serious Federal crimes. That means that in a criminal
alien--or I should say an illegal alien is about seven times
more likely to commit a serious crime than the rest of the
population.
And that's a serious, serious problem, and I'm looking
forward to hearing from our witnesses today how we're going to
reduce that problem.
Thank you, Mr. Chairman.
Mr. Hostettler. Thank you, Mr. Smith. And the Chair
recognizes your years of experience and contribution to
immigration policy in this Country.
Do any of the other Members have an opening statement that
you'd like to make? If not, the Chair once again thanks the
witnesses for your being here, and each of you will be given 5
minutes to make opening statements. Without objection, your
full written statement will be offered to the record.
And, Mr. Feinblatt, if you would be so gracious as to go
first, we'd appreciate it. Also the Subcommittee apologizes,
but you'll have to share today one microphone. And we hope that
one's working.
STATEMENT OF JOHN FEINBLATT, CRIMINAL JUSTICE COORDINATOR, CITY
OF NEW YORK
Mr. Feinblatt. Mr. Chairman, Members of the Subcommittee,
thank you for the opportunity to appear here today before you.
My name is John Feinblatt. I am the Criminal Justice
Coordinator for the City of New York, and I serve as the
mayor's chief policy adviser on criminal justice.
You have called this hearing to examine New York City's
Executive Order 124 and whether that order prevents the New
York City Police Department from contacting the Immigration and
Naturalization Service when a noncitizen is arrested.
As an example of the general policy, you have focused on a
brutal and a tragic rape that occurred December 19, 2002, in a
park owned by the Metropolitan Transportation Authority in the
borough of Queens. Four of the five individuals arrested in
connection with that case were undocumented aliens, three of
whom had been arrested previously by the NYPD.
Let me begin by making one thing crystal clear: New York
City has no sanctuary policy for undocumented aliens.
The New York City Police Department follows Federal law
regarding the reporting of undocumented aliens to Federal
immigration authorities. The NYPD does not restrict the ability
of its officers to report undocumented aliens to the
Immigration and Naturalization Service.
Indeed, section 2(a)(3) of Executive Order 124, which was
issued in 1989 by Mayor Edward I. Koch, states explicitly that
officers and employees of a city agency may transmit
information about undocumented aliens to Federal immigration
authorities if ``such alien is suspected by such agency of
engaging in criminal activity.''
In addition, section 2(c) makes clear that the NYPD should
continue to cooperate, as it always has, with Federal
authorities in investigating and apprehending aliens suspected
of criminal activity.
The order could not be clearer, and any suggestion that the
City of New York maintains a policy that interferes with such
cooperation is simply incorrect.
Let me briefly explain the policy behind Executive Order
124. It was based upon the concern that the public's health,
welfare, and safety could be harmed if, out of fear of being
reported to the INS, immigrants were reluctant to make use of
city services.
For the instance, the city wanted to ensure that
undocumented aliens would get vaccine shots for their children
from city hospitals and that undocumented aliens who were the
victims of crime--the innocent victims of crime--would call the
police.
As the Subcommittee is aware, however, the reporting
provisions of the order were generally preempted in 1996 by the
Illegal Immigration Reform and Immigrant Responsibility Act. It
is very important to note that while the Illegal Immigration
Reform and Immigrant Responsibility Act forbids State and local
governments from prohibiting or placing restrictions on the
reporting of immigration status to the INS, it does not
transform the NYPD into an investigative arm of the INS by
imposing an affirmative duty on police officers to report.
Accordingly, when the New York City police officers arrest
or investigate a person believed to be an undocumented alien
for criminal activity, they are free to report information
about that undocumented alien to the INS. The city does nothing
to prevent them from doing so.
However, I must point out that the first obligation of the
New York City police officer is and always will be to take
suspects into custody, render aid to innocent victims,
interview witnesses, collect precious and often fleeting
evidence, and bring defendants promptly before a judge, all
within the 24 hours that is required by our law.
In regard to the rape that occurred in Flushing Meadow
Park, Queens, on December 19, 2002, we know now that four of
the five individuals who have been charged with this crime are
undocumented aliens, and three of those four have prior arrest
records.
We also know that shortly after four of the suspects were
arrested, detectives contacted the INS, though under Federal
law they had absolutely no obligation to do so. We are
reviewing whether the police officers who had previously
arrested these defendants knew of their undocumented status and
reported that status to the INS.
In preparation for this hearing, I have also spoken to law
enforcement representatives in New York City to evaluate the
level of cooperation they have received from INS when dealing
with undocumented aliens in police custody. The common
experience of police officers and the common experience of
prosecutors in New York City appears to be that the level of
cooperation could be improved.
The INS can be extremely difficult to contact and, when
reached, often reluctant to take any action against
undocumented aliens who have been arrested. Although we fear
that current INS practice may produce a chilling effect on
police officers and prosecutors who are otherwise inclined to
report, we are encouraged by the opportunity to strengthen our
ongoing relationship with INS as it is transitioned into the
new Department of Homeland Security.
In closing, let me remind you, New York City is the safest
big city in America. And as crime rates have risen in other
cities, New York City's crime rate declined to an historic 48-
year-old low. And it has accomplished this in the face of
unprecedented tragedy and fiscal crisis. We in New York are
proud of the job that our police department performs.
Thank you.
[The prepared statement of Mr. Feinblatt follows:]
Prepared Statement of John Feinblatt
Mr. Chairman, members of the Subcommittee, thank you for the
opportunity to appear before you. You have called this hearing to
examine the New York City Executive Order 124 and whether that order
prevents the New York City Police Department (NYPD) from contacting the
Immigration and Naturalization Service (INS) when a non-citizen is
arrested. As an example of the general policy, you have focused on a
brutal rape that occurred December 19, 2002 in a park owned by the
Metropolitan Transportation Authority in the borough of Queens. Four of
the five individuals arrested in connection with that case were
undocumented aliens, three of whom had been arrested previously by the
NYPD.
Let me begin by making one thing crystal clear: New York City has
no ``sanctuary'' policy for undocumented aliens. The New York City
Police Department (``NYPD'') follows federal law regarding the
reporting of undocumented aliens to federal immigration authorities.
The NYPD does not restrict the ability of its officers to report
undocumented aliens to the Immigration and Naturalization Service
(``INS'').
Indeed, section 2(a)(3) of Executive Order 124, which was issued in
1989 by Mayor Edward I. Koch, states explicitly that officers and
employees of a City agency may transmit information about undocumented
aliens to federal immigration authorities if ``such alien is suspected
by such agency of engaging in criminal activity . . .'' In addition,
Section 2(c) makes clear that the NYPD should continue to cooperate as
it always has with federal authorities in investigating and
apprehending aliens suspected of criminal activity. The order could not
be clearer, and any suggestion that the City of New York maintains a
policy that interferes with such cooperation is simply incorrect.
Let me briefly explain the policy behind Executive Order 124. It
was based upon the concern that the public's health, welfare and safety
could be harmed if, out of fear of being reported to the INS,
immigrants were reluctant to make use of City services. For instance,
the City wanted to ensure that undocumented aliens would get vaccine
shots for their children from City hospitals, and that undocumented
aliens who were victims of crime would call the police. As the
Subcommittee is aware, however, the reporting provisions of the Order
were generally preempted in 1996 by the Illegal Immigration Reform and
Immigrant Responsibility Act, found in 8 U.S.C. sec. 1373.
It is very important to note that, while the Illegal Immigration
Reform and Immigrant Responsibility Act forbids state and local
governments from prohibiting or placing restrictions on the reporting
of immigration status information to the INS, it does not transform the
NYPD into an investigative arm of the INS by imposing an affirmative
duty on police officers to report. Accordingly, when New York City
police officers arrest or investigate a person believed to be an
undocumented alien for criminal activity, they are free to report
information about that undocumented alien to the INS; the City does
nothing to prevent them from doing so. However, the first obligation of
New York City police officers is and always will be to ensure that
defendants are taken into custody and promptly brought before a judge
as required by law.
In regard to the rape that occurred in Flushing Meadow Park, Queens
on December 19, 2002, we know now that four of the five individuals who
have been charged with this crime are undocumented aliens, and three of
those four have prior arrest records. We also know that, shortly after
four of the suspects were arrested, detectives contacted the INS
though, under federal law, they had no obligation to do so. We are
reviewing whether the police officers who had previously arrested these
defendants knew of their undocumented status and reported that status
to the INS.
In preparation for this hearing, I have also spoken to law
enforcement representatives in New York City to evaluate the level of
cooperation they have received from INS when dealing with undocumented
aliens in police custody. The common experience of police officers and
prosecutors in New York City appears to be that the level of
cooperation could be improved. The INS can be extremely difficult to
contact and, when reached, often reluctant to take any action against
undocumented aliens who have been arrested.
Although we fear that current INS practice may produce a chilling
effect on police officers and prosecutors who are otherwise inclined to
report, we are encouraged by the opportunity to strengthen our ongoing
relationship with INS as it is transitioned into the new Department of
Homeland Security.
In closing, let me remind you that New York City is the safest big
city in America, and as crime rates rose in other cities in 2002, New
York City's crime rate declined to an historic low. Thank you.
I would be glad to take any questions at this time.
Mr. Hostettler. Thank you, Mr. Feinblatt.
Mr. Cutler?
STATEMENT OF MICHAEL CUTLER, FORMER SENIOR SPECIAL AGENT, NEW
YORK DISTRICT OFFICE, IMMIGRATION AND NATURALIZATION SERVICE
Mr. Cutler. Chairman Hostettler, Ranking Member Ms. Jackson
Lee, Members of the Congress, distinguished members of the
panel, ladies and gentlemen, I would like to start out by
thanking Chairman Hostettler and his staff for this invitation
to appear before you this morning.
This hearing is being held to attempt to understand why a
young woman in Queens, New York, was viciously assaulted by a
number of aliens who had no lawful right to be in the United
States at the time that they carried out this heinous crime
against that woman.
I also understand that the Subcommittee is concerned about
cities around the country which have prohibited their employees
from contacting the INS when they encounter aliens who are
illegally in the United States.
An example of this is Executive Order 124, which was
promulgated by Mayor Ed Koch of New York City nearly 15 years
ago. Because of my assignment to the Organized Crime Drug
Enforcement Task Force, I was not personally stymied by that
executive order. However, I know from colleagues that I've had
over the years at the INS at New York City that this order made
their jobs more difficult.
In the 1970's, prior to issuance of Executive Order 124,
when I was assigned to the Frauds Unit, the access that I had
to the office that had oversight over the New York City welfare
system enabled me to determine if a person who filed a petition
for a spouse to receive resident alien status based on their
marriage was also receiving welfare as a single parent, an
obvious discrepancy which indicated that either welfare fraud
or immigration fraud was being committed.
I can tell you from personal experience that when you're
sworn in as a law enforcement officer, you learn from day one
that you are obligated to enforce all of the laws that come
under your purview and to also notify other appropriate law
enforcement organizations when you encounter violations of law
that do not fall under your immediate jurisdiction.
Law enforcement officers cannot view the laws as a patron
sees the entrees in a restaurant's menu. You don't get to pick
and choose. Your obligation is to enforce all of the laws
dispassionately and objectively.
New York City's Executive Order 124 may well have been
promulgated with the intention of showing sympathy to our
illegal alien population. But in this day and age, it sends a
wrong and a very dangerous message. Additionally, criminals
often mistake kindness for weakness.
As I said during a previous hearing in which I
participated, the enforcement of the immigration laws on what I
have come to refer to as the ``Immigration Enforcement
Tripod.'' The inspectors enforce the laws at ports of entry.
Border Patrol agents enforce the laws between ports of entry,
and the special agents of the INS, soon to be referred to as
the Bureau of Immigration and Customs Enforcement, comprise the
interior enforcement effort and back up the other two
components of the enforcement program.
They are also supposed to lend integrity to the benefits
program and assist other law enforcement agencies in carrying
out various investigations and enforcement activities where
aliens are involved. It is in this area that the INS should
have become involved with at least some of the attackers, but
apparently did not.
I do not know if any effort was made to contact the INS
about any of these criminals, or if the INS failed to respond.
But either way, a young woman was viciously attacked. Sadly,
this is not an isolated incident.
While only a small percentage of aliens living in our
country become involved in committing serious crimes, a large
percentage of our criminal population is, in fact, comprised of
aliens.
When I was assigned to the Unified Intelligence Division of
the DEA in New York, I did an analysis of the arrest records of
individuals who were arrested by the DEA in New York
approximately 10 years ago, and I found that some 60 percent of
the people arrested in New York were identified as being
foreign born, while nationwide some 30 percent were identified
as being foreign born.
I have always felt that the interior enforcement program
was terribly understaffed and, in general, neglected. The proof
of this is incontrovertible when you consider the various
estimates concerning how many aliens currently live and work
illegally in the United States.
The most recent estimates that I've seen range from 9
million to more than 12 million. Certainly, these numbers make
the failings of the INS clear. Cooperation among law
enforcement agencies enables those agencies to use their
limited resources more efficiently.
I can tell you from personal experience that when law
enforcement officers work cooperatively--pooling resources,
authority, and experiences--the effect is one of synergy, where
the total is greater than the sum of the parts.
For example, I don't know the precise statistic, but I do
know that a significant percent of the FBI's--of the criminals
on the FBI's ``10 Most Wanted'' list don't get arrested by the
FBI, but rather get arrested by police officers making routine
vehicle and traffic law stops.
That being said, if the INS is going to respond to local
law enforcement agencies, we need to have many more special
agents to enforce the laws within the United States.
In the mid 1970's, the New York office of the INS had some
250 special agents assigned to that office. Today, the New York
office of the INS has, from what I have been told, fewer than
100 special agents.
I would rather prevent a crime than solve a crime. Law
enforcement is most effective when it is able to act as a
deterrent against criminal activities. In order for law
enforcement--I'm sorry. It needs to be able to develop a
reputation for being effective at enforcing the laws which fall
under its jurisdiction.
The horrible reputation that the INS has acquired over the
years does little to deter aliens, especially aliens bent on
committing crimes, from coming to the United States. We need to
make certain that the aliens who come to our Country understand
that we take our laws seriously.
When we fail to enforce the laws that these aliens
generally encounter when they come here, whether it's because
the Federal Government has failed to provide enough resources
to enforce these laws--which, as we saw on September 11, 2001,
are an intrinsic part of national security--or because local
governments are sending a dangerous message of ambivalence
where the immigration laws are concerned, these failings act to
encourage illegal immigration not just by aliens who seek
illegal employment, but by those who seek to engage in criminal
activities.
It is estimated that nearly 50 percent of the aliens who
live illegally in our country entered the United States through
a port of entry. The terrorists who attacked our Nation on 9/11
also entered the United States through ports of entry and not
by running the border. The Border Patrol could not have
prevented their entry.
Once in the Country, only the special agents can take
appropriate action against aliens who are illegally in this
Country.
I look forward to your questions.
[The prepared statement of Mr. Cutler follows:]
Prepared Statement of Michael W. Cutler
Chairman Hostettler, Ranking Member Ms. Jackson Lee, Members of the
Congress, distinguished members of the panel, ladies and gentlemen:
I would like to start by thanking Chairman Hostettler and his staff
for this invitation to appear before you this morning.
This hearing is being held to attempt to understand why a young
woman in Queens, New York was viciously assaulted by a number of aliens
who had no lawful right to be in the United States at the time that
they carried out this heinous crime against that woman. I also
understand that the Subcommittee is concerned about cities around our
country, which have prohibited their employees from contacting the INS
when they encounter aliens who are illegally in the United States. An
example of this is Executive Order 124, which was promulgated by Mayor
Ed Koch of New York City nearly 15 years ago. Because of my assignment
to the Organized Crime Drug Enforcement Task Force, I was not
personally stymied by that executive order; however, I know from my
colleagues at INS who were assigned to other units at the NYC District
Office, that this order made their jobs more difficult. In the 1970s
prior to the issuance of Executive Order 124, when I was assigned to
the Frauds Unit, the access I had to the office that had oversight over
the NYC Welfare system enabled me to determine if a person who filed a
petition for a spouse to receive resident alien status based on their
marriage was also receiving welfare as a single parent--an obvious
discrepancy which indicated either welfare fraud or immigration fraud
was being committed.
I can tell you from personal experience, when you are sworn in as a
law enforcement officer, you learn from day one, that you are obligated
to enforce all laws that come under your purview and to also notify
other appropriate law enforcement organizations when you encounter
violations of law that do not fall under your immediate jurisdiction.
Law enforcement officers cannot view the laws as a patron sees the
entries in a restaurant's menu. You don't get to pick and chose. Your
obligation is to enforce all the laws dispassionately and objectively.
New York City's Executive Order 124 may well have been promulgated
with the intention of showing sympathy to our illegal alien population,
but in this day and age it sends a wrong and dangerous message.
Criminals often mistake kindness for weakness.
As I said during a previous hearing in which I participated, the
enforcement of the immigration laws rests on what I have come to refer
to as the ``Immigration Enforcement Tripod.'' The inspectors enforce
the laws at ports of entry, the Border Patrol enforces the laws between
ports of entry and the Special Agents of the INS, soon to be referred
to as the Bureau of Immigration and Customs Enforcement, comprise the
interior enforcement effort and back up the other two components of the
enforcement program. They are also supposed to act to lend integrity to
the benefits program and assist other law enforcement agencies in
carrying out various investigations and enforcement activities where
aliens are involved. It is in this area that the INS should have become
involved with at least some of the attackers but apparently did not. I
do not know if any effort was made to contact the INS about any of
these criminals, or if the INS failed to respond. Either way, a young
woman was viciously attacked. Sadly this is not an isolated incident.
While only a small percentage of aliens living in our country become
involved in committing serious crimes, a large percentage of our
criminal population is, in fact, comprised of aliens. When I was
assigned to the Unified Intelligence Division of the DEA in New York, I
did an analysis of the arrest records of individuals who were arrested
by the DEA in New York approximately 10 years ago. I found that some
60% of the people arrested were identified as being foreign born while
nation-wide some 30% were identified as being foreign born.
I have always felt that the interior enforcement program was
terribly under-staffed and in general, neglected. The proof of this is
incontrovertible when you consider the various estimates concerning how
many aliens currently live and work illegally in the United States. The
most recent estimates that I have seen range from 9 million to more
than 12 million. Certainly these numbers make the failings of the INS
clear. Cooperation among law enforcement agencies enables those
agencies to use their limited resources more efficiently. I can tell
you from personal experience that when law enforcement officers work
cooperatively, pooling resources, authority and experiences, the effect
is one of synergy where the total is greater than the sum of the parts.
For example I don't know the precise statistic, but I do know that a
significant percent of criminals on the FBI's ``Ten Most Wanted'' list
don't get arrested by FBI Special Agents, but rather by police officers
making routine Vehicle and Traffic Law stops.
That being said if, the INS is going to respond to local law
enforcement agencies we need to have many more Special Agents to
enforce the laws within the United States. In the mid 1970s the New
York Office of the INS had some 250 Special Agents assigned to the
office. Two Special Agents were assigned to the Organized Crime Strike
Force while the other Special Agents conducted investigations that were
primarily focused on administrative goals, the deportation of aliens
who were illegally in the United States and the conducting of
investigations in support of applications for benefits. Today the New
York office of the INS has, from what I have been told, fewer than 100
Special Agents, even though the INS contributes Special Agents to a
number of multi-agency law enforcement organizations such as the Joint
Terrorism Task Force, the Violent Gang Task Force, the Organized Crime,
Drug Enforcement Task Force and the Organized Crime Strike Force.
Additionally, much of the work performed by INS Special Agents is of
far greater complexity where the ultimate goal may include the removal
of deportable aliens, but also focuses on the criminal prosecution of
individuals who violate the criminal provisions of the Immigration and
Nationality Act.
I would rather prevent a crime than solve a crime. Law enforcement
is most effective when it is able to act as a deterrent against
criminal activities. In order for a law enforcement organization to be
an effective deterrent against criminals, it needs to develop a
reputation for being effective at enforcing the laws, which fall under
its jurisdiction. The horrible reputation that the INS has acquired
over the years does little to deter aliens, especially aliens bent on
committing crimes, from coming to the United States. We need to make
certain that aliens who come to our country understand that we take our
laws seriously. When we fail to enforce the laws that these aliens
generally encounter first when they come here, whether it is because
the Federal government has failed to provide enough resources to
enforce these important laws, which, as we saw on September 11, 2001,
are an intrinsic part of national security, or because local
governments are sending a dangerous message of ambivalence where the
immigration laws are concerned, these failings act to encourage illegal
immigration not just by aliens who seek illegal employment, but by
those who seek to engage in criminal activities. It is estimated that
nearly 50% of the aliens who live illegally in our country entered the
United States through a port of entry. The terrorists who attacked our
nation on 9/11 also entered the United States through ports of entry
and not by running the border. The Border Patrol could not have
prevented their entry. Once in the country, only the Special Agents can
take appropriate action against aliens who are illegally in the United
States.
I look forward to your questions.
Mr. Hostettler. Thank you, Mr. Cutler. And your comments
and those by the Ranking Member about the importance of the
adequate amount of resources to enforce the immigration laws
are taken, and this Subcommittee will most, indeed, be looking
at that issue in the coming months.
Mr. Cutler. I appreciate that. Thank you, Mr. Chairman.
Mr. Hostettler. Thank you.
Mr. Nickell?
STATEMENT OF JOHN NICKELL, OFFICER,
HOUSTON POLICE DEPARTMENT
Mr. Nickell. Mr. Chairman, Members of this Committee, I
thank you for having me here today. I know I have written
testimony that I prepared that I turned into you, but I'm
actually just going to be speaking to you just on some
highlights and basically on what I know is on my mind, what's
going on in Houston and nationwide.
I am an 11-year veteran of the Houston Police Department,
all of it being on the street. My main concern for this, on the
street-level experience, is the number of people that we come
in contact with on the street and are required or not required
or cannot inquire into their citizenship status while we're out
there on the street may be preventing further crimes from
someone if we have them loaded into our database.
And that our computers are able to connect with INS and
their IDENT system for any felony warrants they may have issued
through the INS. As is now, we cannot do that, we will not do
that, and we are barred from doing that by policy, our General
Order 500-5.
It's my contention that officers should have the ability
out there on the street to do this. We will link--we gladly
link up with DEA. We gladly link up with FBI to get high-
profile, hard drug bust cases with Customs down at the Port of
Houston. We'll gladly do that. But we refuse to look upon on
the INS and help them out in any way, even though they are a
Federal agency and they do enforce Federal laws.
My contention is this: If we can link into the NCIC and
those types of systems, why should we not be able to link into
the IDENT system, if we have someone stopped on a probable
cause, whether it be on traffic or we've been called to a scene
or whatever the case may be?
If we've already had probable cause to come into contact
with that person because they've violated a law--not in a
dragnet style of ``let me see your papers,'' but a probable
cause for a violation of law--if we check them on our computers
with their vehicles, or if they have no ID and they've been
placed under arrest and we take them down to our central police
station, we're having them fingerprinted and live-scanned, as
we call it, those systems should be hooked up with INS so that
we should know if they are in violation of any type of INS law
or have felony INS warrants out for their arrest.
I spoke with a supervisor in the INS region office in
Houston last week, and he said that is the main thing that they
are having trouble with, that HPD will not even acknowledge
felony warrants being issued out for illegal immigrants. And
that is a problem.
As you know, the New York City has this case here. But down
in Texas, we also had the Angel Resendiz case, who now sits on
death row for serial murders throughout three or four States.
That is a problem.
Law officers, regardless of where they're at in the
country, should be able at least, when they run a check through
the computer, be able to access INS systems and see if they
cannot at least keep this person off the street any further.
With immigration, this type of law enforcement, which is
proactive, kind of like DWI enforcement, as you all know, you
never know the end result of what you may have prevented. If I
stop someone for DWI, I do not know if I kept them from killing
someone down the road, and that's the drawback. You can't keep
a statistic on proactive policing, which is what everyone is
for, proactive policing instead of reactive policing.
So if we can have someone and some way of checking them
while we have them in our custody for a violation through INS,
we may prevent further crimes down the road.
And another thing that comes to mind is the liability
placed upon issues or on cities, municipalities, or police
departments. We have someone in our custody, yet we refuse to
acknowledge INS or their laws, what liability comes back on
that municipality or that department or that individual officer
per se if we did not do everything that we could do to enforce
all the laws, release that person, and they end up committing
another crime or violent crime down the road? That leaves a
question for officers out there on the street also.
I thank you for your time and your patience and your
hearing me out. Thank you.
[The prepared statement of Mr. Nickell follows:]
Prepared Statement of John Nickell
Mr. Chairman, Members of the Committee,
Thank you for the opportunity to testify here before you today on
this important issue. As you know, immigration is a huge problem in our
society and our country as a whole. An even larger problem is the
restriction of local law enforcement officers, by their respective
agencies, from enforcing immigration laws.
Even though the main topic of discussion is a case involving the
New York Police Department (NYPD) and five illegal immigrants, these
types of crimes, I believe, continue on a regular basis throughout the
country without our knowledge. When local agencies around the country
enact a ``sanctuary law'' type of policy, society at large is placed at
risk. Sanctuary laws undermine the authority and effectiveness of
street level officers and completely render them ineffective to prevent
potential further criminal activity. With this type of policy,
authorities may never know if an individual is in the United States
illegally and if they could have been removed before they had the
opportunity to commit a criminal act.
This similar type of ``sanctuary law'' policy is in effect with the
Houston Police Department as well. We are specifically told we ``shall
not inquire as to the citizenship status of any person, nor detain or
arrest any persons solely on the belief that they are in this country
illegally.''
This General Order also states: ``As police officers, we must rely
upon the cooperation of all persons, including citizens, documented
aliens, and undocumented aliens, in our effort to maintain public order
and combat crime.'' This same General Order further states:
``Undocumented alien status is not, in itself, a matter for local law
enforcement.'' I fail to see the logic in this thinking.
Here we have a many contradictions within law enforcement itself.
First, we know that ``undocumented alien'' is someone who has either
entered this country illegally or has overstayed his or her visa. If an
individual is considered an ``illegal alien,'' in any aspect, then we
must allow all law enforcement officers to pursue every lawful action
when this individual is taken into custody. Second, the Houston Police
Department General Order states ``we must rely upon the cooperation of
all persons.'' Is it reasonable to even think we can expect cooperation
from an individual whose first act in this country was to violate its
entry laws? Should we expect cooperation from someone that refuses to
adhere to the agreements of their visa and overstays their legal
visitation? The third and possibly largest contradiction in this matter
is the ``pick and choose'' type of association with other agencies.
Police agencies, nationwide, enthusiastically join with the FBI and DEA
for drug busts and other high profile cases. However, we refuse to even
consider working with the INS for politically expedient and correct
reasons.
Inconsistent policies such as this take away from the first line of
interior enforcement of immigration laws. When we shackle law
enforcement officers in such a manner, instead of protecting U.S.
citizens, and people who are here legally, the danger to society
greatly increases by allowing potential violent criminals to freely
roam our cities. The case in New York points to this, as well as the
Angel Resendiz case. Angel Resendiz committed one of his many murders
in the Houston area while on his multi-state killing spree.
What if we, as a police agency, come into contact with an
individual such as the criminals in New York or Angel Resediz, and
refuse to work with the INS by not inquiring into that individual's
immigration status? What if, after an individual was handled by an
agency that has a ``sanctuary law'' policy, that individual is turned
loose and then commits a violent crime? Who do we hold responsible for
criminal acts they commit after being released? Could working closely
with the INS databases, which may help to identify potential offenders,
have prevented this crime? If we can run criminal checks through NCIC
and we can perform background checks on law abiding American citizens
who wish to purchase firearms, why can we not work with the INS?
According to a September 27th article in the Washington Times,
entitled ``Loss of agents hinders effort to secure border,'' the author
tells us that Border Patrol agents are ``leaving in staggering
numbers.'' According to the article ``The U.S. Border Patrol is facing
a 15 percent attrition rate that threatens to increase to more than 20
percent by the end of the year.''
How can we, as a nation, expect any type of immigration control or
enforcement with these kinds of attrition rates in our Border Patrol
and refusing to allow local law enforcement officers to participate in
immigration enforcement? The answer is, we can't! To allow these types
of policies to continue within individual police departments is a great
disservice to the law-abiding, tax-paying people of the United States.
The Sunday, February 23, 2003, Houston Chronicle carried an opinion
article by Baltimore Mayor, Martin O'Malley, about America's continued
vulnerability. The Mayor states ``Most of America's population centers,
and most of its economic infrastructure, are nearly as vulnerable now
as they were on Sept. 11, 2001.'' If the Mayor of a city like Baltimore
is making this strong of a point on this particular issue, how can we,
as local law enforcement agencies, continue to refuse to help in the
enforcement of immigration laws? We in the law enforcement community
should not be restricted from working with each other by mandates and
policies such as these. Whether the law that is being violated is
Federal, State, or local, we cannot afford to arbitrarily choose the
laws we wish to enforce. If we continue this practice, we do so at the
Nation's peril.
Mr. Hostettler. Thank you, Mr. Nickell.
Ms. Orloff?
STATEMENT OF LESLYE ORLOFF, IMMIGRANT WOMEN PROGRAM, NOW LEGAL
DEFENSE AND EDUCATION FUND
Ms. Orloff. Thank you. Thank you, Chairman Hostettler, and
Ranking Member Jackson Lee, for inviting me to speak today.
My name is Leslye Orloff. I'm the director of the Immigrant
Women Program at NOW Legal Defense and Education Fund. I'm also
co-founder of the National Network to End Violence Against
Immigrant Women, which is about a 500- to 700-member strong
organization made up of advocates, attorneys, shelter workers,
social workers, and others, who provide assistance to immigrant
victims of domestic violence, sexual assault, and trafficking.
I've been working personally on issues around battered
immigrant victim advocacy for about 20 years. And I first want
to start by thanking the many Members of Congress and many
Members of this Subcommittee for the work that you've done in
the past years in supporting legislation that helps immigrant
victims of domestic violence, sexual assault, and trafficking--
notably, the Violence Against Women Act, provisions in both
IIRAIRA and the welfare reform legislation in '96, and other
pieces of legislation.
I want to start today. I'm going to not--I'm going to
summarize some key points in my testimony and submit the rest
for the record.
But I want to start with a story about a woman named Lucia.
She lives in south Florida. She's 35 years old and has been
married for quite some time to a U.S. citizen who is an abuser,
who never filed immigration papers for her. They have two U.S.
citizen children and continue living together.
And this story illustrates the problems when law
enforcement becomes INS, when there are MOUs like in the
memorandums of understanding in South Florida in which police
are enforcing INS laws, and what happens in immigrant
communities when this occurs.
Lucia had suffered numerous, numerous beatings on behalf of
her--from her husband. So much so that the neighbors heard them
and saw bruises a number of times, and heard her screams of
pain.
Her husband never filed immigration papers for her,
although he clearly could as a U.S. citizen, and told her
repeatedly, as we hear all over the country, that, ``If you
call for help, the police will turn you in to INS and deport
you. And you'll never see your children again.''
And so, she didn't call for help, and she refused to go to
the hospital, no matter how bad her injuries were. Ultimately,
her neighbor, who was also a foreign-born immigrant, took her
to a local legal services--or basically a local agency that
worked with immigrant victims of domestic violence. And both
the neighbor and Lucia told the advocates at that agency that
the reason she never called the police was because of the
advertising on television and on radio about the fact that if
you call the police they turn you over to INS.
The fear for her was so great that she kept putting up with
the beatings because she believed she had no other option.
We see this happening all over the country in different
places. And so that what we--the issues about police reporting
to INS really do have dangers and harm, if it happens routinely
for immigrant victims of domestic violence, rape, sexual
assault, and trafficking.
Domestic violence is not higher in any particular race,
class, or ethnic group in the U.S. The rates are approximately
the same across group lines. But immigrant victims are at
greater risk of longer exposure to abuse due to systemic
barriers that they have to overcome when they seek help.
And those include things like police reporting and concerns
about if they call the police for help whether they'll be
turned in and the fact that there are very few culturally
competent services in this country to help immigrant victims of
domestic violence.
Now, over the years, thanks to Members of Congress, the
Violence Against Women Act has done a lot to change this. But
for immigrant victims, it has not been wholly successful, and
that is no small part due to the fact that, although not
required by Federal law, there are law enforcement officers
across the country who routinely ask immigration status
questions of victims who call for help.
There are judges in protection order cases that will ask
the victim her immigration status and call INS. And instead of
holding the abuser accountable and giving her a protection
order, INS will pick her up.
And so, this is a tremendous problem that we're trying to
make sure that whatever you do on this issue, that you keep in
mind the effect that it has on the very victims whose
cooperation is key to prosecution of people committing crimes
in our communities.
There is a history of insufficient police training around
issues, both of working through community policing with
immigrant communities and also on domestic violence.
Researchers found that among immigrant victims of domestic
violence, only one in four are willing to call the police for
help, no matter how bad the violence, how matter how long, and
no matter how severe.
The reporting rate for U.S. women generally is one in two,
and if you look at the undocumented immigrant population, the
reporting rate drops to one in seven. And we're talking about
serious domestic violence cases with numerous incidents of
abuse.
And what happens is for immigrant victims, because abusers
use control over immigration status as a tool and threats to
turn her in to INS, when they hear on the radio and television
that police are, in fact, reporting or they hear from their
friend in the community who is their support system that her
sister was turned into INS when she called for police to help
her on a domestic violence case, it is the penultimate barrier.
Women won't call for help. Women won't cooperate in getting
abusers prosecuted. And so--and it has an incredible chilling
effect.
Whereas, what should be happening is we should be fostering
trust through community policing in immigrant communities and
have better law enforcement overall, which will enable us--as
the Violence Against Women Act of 1994 and 2000 wanted us to
do--to prosecute perpetrators of domestic violence,
perpetrators of rape and sexual assault, and traffickers in
women and children.
And that if we don't, our communities will suffer. It's not
just the individual victims who can't get protection and are
harmed, but their children grow up learning that violence is
okay. And what we know from domestic violence and sexual
assault perpetrators is that if they can abuse one person and
that person is deported, they will continue to abuse others and
will put other people at risk in our communities.
And so, what--and that the other thing that's important to
understand is that with immigrant victims, all of them, many of
them, if they're coming to the attention of the police and they
have suffered injuries, which are usually the kinds of things
that lay the ground for the probable cause determinations that
you heard about a minute ago. They are, by definition today,
immigrant victims of domestic violence, rape, or sexual assault
who can qualify for immigration protection under either the
Violence Against Women Act, the U visas--the crime victim
visas--or the T visas for trafficking victims.
And we want to encourage that cooperation with police that
ensures that victims are not jeopardized with questions about
immigration status; so that they can feel free to call the
police; and so that the prosecutions happen.
Mr. Hostettler. Ms. Orloff, would you be able to wrap up?
Ms. Orloff. Okay. And let me just say that it is as you
look into this issue that the kinds of bipartisan efforts for
the criminal justice system to find a--we seek a consensus that
there shouldn't be inquiries into immigration statuses of
victims who call for help from police and that understanding
that if those questions are asked, you're needlessly endanger
innumerable immigrant victims and their children.
Thank you very much.
[The prepared statement of Ms. Orloff follows:]
Prepared Statement of Leslye E. Orloff
_______________________________________________________________________
*The footnotes referenced in this statement were not available at the
time of this hearing.
Mr. Hostettler. Thank you, Ms. Orloff. We'll now turn to
questions of the witnesses and attempt to hold to the 5-minute
mark.
First of all, Mr. Feinblatt, in your statement you say,
``Let me begin by making one thing crystal clear: New York City
has no sanctuary policy for undocumented aliens. Indeed,
section 2(a)(3) of Executive Order 124, which was issued in
1989 by Mayor Edward I. Koch, states explicitly that officers
and employees of a city agency may transmit information about
undocumented aliens to Federal immigration authorities if 'such
alien is suspected by such agency of engaging in criminal
activity.' ''
Now, if that is the case, why did the 2nd Circuit Court of
Appeals in 1991 say that ``the executive order is in its face a
mandatory noncooperation directive''? Likewise, why would the
court also say the order had the effect of ``outlawing even
voluntary cooperation'' and that it did ``forbid all voluntary
cooperation by State or local officials with particular Federal
programs''?
And they cited specifically sections 434 and 642 of the
Personal Responsibility and Work Opportunity Act of 1996 and
the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, respectively. But why would they say that?
Mr. Feinblatt. It's absolutely clear on its face that E.O.
124 had a carve-out for law enforcement. In fact, it's been the
practice in New York City to cooperate in many instances
between INS and law enforcement.
Clearly, we understand that the Federal law of 1996
preempted the reporting--many of the reporting requirements in
E.O. 124. And we in New York City are in complete compliance
with the law now.
But let me point out the history of cooperation. Our
probation department has the INS computer system. Our
corrections department has two INS agents stationed permanently
at our jail. We have 1,000 police officers on anti-terrorism
duty that are participating every day with the INS.
We are working currently with the Governor's office and
with INS to arrange that every rap sheet in New York State be
imprinted with the status of noncitizens. New York City is
cooperating at every step in the way with INS in order to do
better law enforcement.
Mr. Hostettler. Would you be able to supply for the
Committee a copy of the new executive order as redefined after
the Court of Appeals? Is there another executive order that
repeals the provisions of the old executive order that were
found to be unlawful?
Mr. Feinblatt. If you look at the 2001 charter in New York
City, you see specifically that it authorizes the mayor of the
City of New York to promulgate regulations about
confidentiality. And the legislative history, in no uncertain
terms, actually references the 1996 Federal law and makes clear
that any new promulgation of any kind of executive order around
confidentiality has to be totally congruent with the law.
Mr. Hostettler. Okay. So to get it straight, we have the
old executive order. We have a new city charter. Is there a new
executive order?
Mr. Feinblatt. New York City is now working on a drafting
of a new executive order, and it is clear by the most recent
charter that that executive order will comport completely with
Federal law.
So it is not only--it is not only the practice in New York
City to work with INS and law enforcement, it is clear in the
charter that those are the steps that we will be taking.
Mr. Hostettler. What is the guidance that you are now
giving the police officers? Are there new procedures in place
to inform and train the officers with regard to the charter?
Mr. Feinblatt. You know, in the instant case, the tragic
instant case that is the subject of this hearing, we know, as
you do, the detective called the INS. There is absolutely no
question that police officers on the beat understand their
responsibility.
You know, my grandmother used to always say the proof is in
the pudding. Well, I think that call to the INS that resulted
in detainers is the proof. It applies here.
Mr. Hostettler. Well, with all due respect, I'm over my
time almost. But subsequent to the new charter, prior to the
arrest, some of these individuals were arrested by New York
Police Department. And so, while the proof is in the pudding
after the fact that a woman was raped, my concern is that today
in New York City, are New York police officers directed and/
or----
Mr. Feinblatt. New York City police officers are following
the Federal law. The Federal law does not require police
officers to report. It does not impose an affirmative duty.
That is the law passed by Congress.
What the Federal law requires is that we not interfere with
a police officer or other officials' actions to report. We are
in complete compliance with Federal law.
And in fact, I can tell you again that by stationing INS
agents at our city jails, by having INS computers at the
probation, by working with INS to have our rap sheets embolded
with immigration status, we as a city are clearly going beyond
any obligation that was imposed by the Federal law.
Mr. Hostettler. Thank you, Mr. Feinblatt.
Ms. Jackson Lee?
Ms. Jackson Lee. Thank you very much, Mr. Feinblatt. Thank
you for your testimony, and I will pointedly question you this
morning.
Welcome. And let me again--even though cities are
competitive, let me, first of all, acknowledge the spirit of
New Yorkers and reckoning what you all have experienced over
the last 2 years, let me applaud you for the statement of
having the lowest--or one of the lowest crime rates for a big
city in America. You are to be applauded, and I congratulate my
fellow Americans, if you will.
Let me ask a question along the lines of the Chairman,
pointedly. Do the procedures that you have in place now, do you
believe, inhibit, prohibit, undermine the police work of the
NYPD? Are you able to pursue lines of investigation that you
think are appropriate as you are following your own policies
and the Federal law?
Mr. Feinblatt. I think the number-one inhibitor to any law
enforcement agent, whether they're in New York City or in any
other city in this country, for working with INS is the
response that INS has given law enforcement.
Ms. Jackson Lee. So with that in mind----
Mr. Feinblatt. In prep----
Ms. Jackson Lee. Let me just pursue it, and I know where
you're going.
Mr. Feinblatt. Yes.
Ms. Jackson Lee. With that in mind, your police officers
feel comfortable in providing information that they obtain in
the course of their duties, investigating criminal activities--
they feel comfortable in making reports?
Mr. Feinblatt. Our officers feel comfortable in making
reports. It is in their discretion, as the Federal law clearly
states, for them to make reports, and they do make reports, as
evidenced in the brutal rape.
Ms. Jackson Lee. And what would be helpful, of course, as
you've already said, clearly, is for the INS to be more
responsive and to respond to the information that they freely
receive from NYPD at this time?
Mr. Feinblatt. We have--in preparation for this hearing, we
interviewed police officers and prosecutors and other law
enforcement agents. Time after time, we heard stories about the
response that they got from the INS in serious cases. A-1
felonies punishable by up to 25 years to life, the only way
they got response from the INS was with high-level
intervention.
Other cases, prosecutors reported actually the selling of
fake green cards. It took high-level intervention to get any
response from the INS.
We have time and time again been unable to reach INS on the
phone. When we reach them on the phone, they require that we
write a letter. When we write a letter, they require that it be
by a superior.
Law enforcement requires split-second decisions and split-
second actions.
Ms. Jackson Lee. But there is no--you have no bar within
your policies to bar your officers from communicating with the
INS? Is that a yes or no?
Mr. Feinblatt. New York is in full compliance with the 1996
law.
Ms. Jackson Lee. Appreciate it very much, Mr. Feinblatt.
Mr. Nickell, thank you for your testimony. As I was
reviewing the so-called sanctuary policy from the Houston
Police Department, I think the language specifically states
that we are told that we shall not inquire as to the
citizenship status of any person or detain or arrest any person
solely on the belief that they're in this country illegally.
Which means that if that is the singular reason for having
a dialogue or reporting them, it does not, as I read the order,
bar any officer who believes someone is engaged in criminal
activity from pursuing their duties. Specifically, the order
states it is--undocumented alien status is not in itself a
matter for local law enforcement, and so it has nothing to do
with the idea of them participating in criminal activity.
But my question to you is knowing the diversity of
Houston--certainly, New York represents a very diverse city--
would you believe that teachers in elementary schools need to
haul first-graders out because they believe that they're
illegal aliens? Or hospitals, like the Harris County Hospital
Department, needs to haul out people in the emergency room
because they believe that they're illegal aliens?
Mr. Nickell. No, ma'am. And that wouldn't be a probable
cause of a criminal act.
Ms. Jackson Lee. But are you now, Mr. Nickell, barred, when
someone is engaged in a criminal act, to not provide
information to the INS? And if so, it is not clear by this
policy because the policy does not suggest in Houston that
there is any bar to preventing you, when you find someone
engaged in criminal activity.
Mr. Nickell. Yes, ma'am. The prevailing attitude in HPD is
that you are barred from working with INS whatsoever. And very
specifically, in that general order in the last paragraph very
specifically states that we will not deal with INS,
particularly on any INS raids, unless we have authority from
the chief, and they go in there for some other criminal
activity, and then only with the chief's authority going in and
working with them.
And as I said in my statement, what my contention is, is
that we should have everything at our disposal on the street
level, just on the databanks, working--if we have probable
cause that they have violated a law, that's the only place that
I'm looking for any intervention to take place.
Ms. Jackson Lee. Well, I think it may be distinctive on
what distinctive perspective that we're both saying. I think
there is no bar for you reporting these individuals involved in
criminal activity. There may be a bar from actual collaborative
work, and I think that is different. But I do appreciate your
testimony.
And I would only say that the language included in your
statement does not indicate that there is a bar from the HPD
cooperating in reporting criminal individuals that are illegal
aliens involved in criminal activities.
Mr. Chairman, as I see that that clock moves quite quickly
for both of us, I would like to ask Ms. Orloff--I would ask for
an additional 1 minute.
Mr. Hostettler. Without objection.
Ms. Jackson Lee. Thank you very much.
Just quickly, and I'll just simply say because your point
is so important about battered women. And you heard my question
about school teachers and hospital officials.
Just simply, do you have any idea of how we can encourage
or how important immigrant--if you will, immigrant cooperation
with the law enforcement is important in making us safe and
making the immigrant community safe, simply?
Ms. Orloff. Well, I think training would be key. I mean, we
now have new crime victim visas that most police departments
don't know about, don't know about the certifications they can
do. INS has not fully implemented the new crime victim visas,
the U visas.
And so a combination of getting good regs out from INS that
has the Vermont Service Center, the very good division of INS
adjudicating these cases that's sensitive to the issues. And
getting police officers trained and getting the information out
from the police department to the community that we're a safe
place to come if you're a victim. We're not going to harm you.
We're not going to turn you in, and there are laws to protect
you.
So that the police could actually be a conduit to victim
services providers and other--and access to legal immigration
status through INS, which they are not now serving as. Thank
you.
Ms. Jackson Lee. Thank you.
Thank you, Mr. Chairman.
Mr. Hostettler. Thank the gentlelady.
The gentleman from Texas, Mr. Smith.
Mr. Smith. Thank you, Mr. Chairman.
Mr. Feinblatt, I was glad to hear you say that you were
totally complying with the 1996 Federal law, and I assume that
that means that you are ignoring many parts of the old
Executive Order 124. Is that right?
Mr. Feinblatt. We are in complete compliance with the law.
As you know the 1996----
Mr. Smith. To the extent that it conflicts with Executive
Order 124, you would be ignoring 124?
Mr. Feinblatt. 1996 law preempted many of the provisions of
E.O. 124.
Mr. Smith. Okay. So they would be ignored since they're
preempted?
Mr. Feinblatt. They've been preempted.
Mr. Smith. Okay. I assume--well, that's a technical term.
Are you also, shall we say, preempting the mayor's statement
after 9/11 where he said that illegal aliens in New York City
didn't need to worry about the INS?
Mr. Feinblatt. I think that any statement the mayor made
about that was, again, about making sure that essential city
services----
Mr. Smith. I think he was talking about law enforcement,
not services.
Mr. Feinblatt [continuing]. Were provided to it.
Mr. Smith. To the extent he was talking about law
enforcement, you would have to ignore it then, right?
Mr. Feinblatt. Law enforcement, we have devoted 1,000
police officers to anti-terrorism activities. We are in daily
contact with the INS since 9/11. We have the lowest crime rate
of any major city in the United States. We are working with the
INS----
Mr. Smith. No, no. That wasn't my question. Mr. Feinblatt,
let me go back to my question, which was to the extent that the
mayor suggested that the police department not contact the INS,
that would be ignored, would it not?
Mr. Feinblatt. I think that the New York City's record in
dealing with law enforcement----
Mr. Smith. Okay. If you don't want to answer the question,
just tell me you don't want to answer the question.
Mr. Feinblatt [continuing]. Speaks for itself.
Mr. Smith. It's better than giving a long answer.
Let me be reassured on one other point, and that is that no
one within the police department is discouraging any police
officer from contacting the INS. Is that right?
Mr. Feinblatt. The--that is correct.
Mr. Smith. Okay.
Mr. Feinblatt. That is correct.
Mr. Smith. You made the point you're not required. I'm
making the point that--or asking you if anyone is being
discouraged from contacting the INS?
Mr. Feinblatt. No. We are in full compliance with Federal
law.
Mr. Smith. Okay. Thank you.
Mr. Cutler, this is just a statement----
Mr. Feinblatt. I think you might also note, and I think
that when you asked me about the statements of the mayor after
9/11----
Mr. Smith. Yes.
Mr. Feinblatt [continuing]. That was Mayor Rudy Giuliani,
the law enforcement mayor of the United States, not the current
mayor of New York City.
Mr. Smith. No. I'm sorry. That's incorrect. It was Mayor
Bloomberg who made the statement.
Mr. Feinblatt. Directly after 9/11?
Mr. Smith. Yes. As amazing as it sounds, that's the case.
Mr. Feinblatt. He wasn't mayor at the time. He wasn't mayor
at the time.
Mr. Smith. He wasn't mayor at the time.
Mr. Feinblatt. Was not mayor after 9/11.
Mr. Smith. But Mayor Bloomberg made that statement
subsequent to 9/11 was my point.
Mr. Cutler, it seems to me that lives would be saved and
traumas avoided if cities with sanctuary policies cooperated
with the INS rather than obstructed the INS, and I assume that
you agree with that?
Mr. Cutler. Couldn't agree with you more.
Mr. Smith. Maybe I should just say I appreciate your strong
statement on that.
It seems to me, by the way, that there is a common thread
here, at least between--among three of the witnesses, and that
is a lack of cooperation and a lack of--with the INS. That
they're not coming through as they are mandated, and that's a
disappointment. And that's something for us to maybe tackle at
another hearing.
But the fact that they aren't giving you the help that you
ask for is a disappointment.
Ms. Orloff, I just want to mention--I can go back to you.
You said that police should not enforce immigration laws.
That's at odds with both the opening statements of the Chairman
and the Ranking Member. But it seems to me there's a little bit
of a double standard there. You say police shouldn't enforce
the laws, but they should help aliens get immigration benefits.
Don't you think if you're going to have the police help
them get benefits, you ought to at least have the police
enforce the law as well?
Ms. Orloff. Well, the problem is if the police enforce the
law against victims who call for help, as opposed to their
perpetrators, nobody is going to call for help, and there is no
laws to enforce, and the perpetrators go free.
Mr. Smith. I was going to say your general statement, you
want it narrowed to you would be in favor, therefore, of the
police, say, arresting a criminal alien if they had the
opportunity to do so?
Ms. Orloff. We would have no problem with that. The only
caveat is in domestic violence, there's a lot of problems.
Mr. Smith. Right.
Ms. Orloff. One of the things we found is police officers
arrive on the scene; they do not speak the language. They
listen to the citizen English-speaking husband and arrest her,
and then she qualifies. So that's the caveat.
Mr. Smith. You did answer my question. You did answer my
question. I appreciate that you support the arrest of criminal
aliens.
Ms. Orloff. We have no problem with that.
Mr. Smith. Okay. Thank you very much. Thank you, Mr.
Chairman.
Mr. Hostettler. I thank the gentleman from Texas.
The gentleman from Iowa, Mr. King.
Ms. Jackson Lee. Mr. Berman?
Mr. Hostettler. The gentleman from California. I apologize
for not seeing you walk in, Mr. Berman.
Mr. Berman. Thank you very much, Mr. Chairman.
Ms. Jackson Lee. That's all right. He's down at the end.
Mr. Berman. Thank you, Ms. Jackson Lee.
Well, just following up, Ms. Orloff, on Mr. Smith's
question. I haven't yet met the person who is against arresting
criminal aliens.
But there was a case which led to a proposed rule,
promulgated near the end of the Clinton administration,
essentially saying that people would be eligible for asylum if
they were fleeing gender-based persecution.
It resulted from a Guatemalan case where a woman who had
been repeatedly abused by her husband fled, and notwithstanding
the facts of that case, the Board of Immigration Appeals had
rendered a decision which essentially ordered her returned to
that country.
And the implication of that regulation affects not only
victims of abuse, but victims of trafficking and other kinds of
issues.
I've heard that there is an effort, in these waning moments
of INS status in the Justice Department, for the Attorney
General to withdraw that rule and, in fact, have promulgated a
substitute regulation which will render ineligible anyone in
that class--people who have been subject to physical violence,
sex trafficking, these kinds of issues--and make them
ineligible for asylum and required to be deported back to the
country where they face that abuse, notwithstanding the failure
of the government in that country to do anything about that.
Do you know anything about this?
Ms. Orloff. Yes. We have heard the same thing. And in fact,
our grave concern about it is that if Attorney General Ashcroft
decides to recertify himself, which it sounds like we've heard
that he may, and reverse R-A, what the Board of Immigration
Appeals decided in R-A was they denied her asylum saying that
he didn't beat her because she was a woman, he would beat any
woman who was his wife.
Therefore, she didn't get asylum. And it makes no sense.
Because we're gravely concerned because essentially----
Mr. Berman. Guatemala does not have a same-sex marriage
law.
Ms. Orloff. Right. And so the issue is that we're concerned
because there are battered women who, you know, flee from
countries where they are severely abused, where they can not
get protection. They find the courage to make their way here.
And we want our laws, like the laws of Canada and Britain and
other Westernized countries, to offer protection to those
victims.
And we have heard that Ashcroft is planning on recertifying
himself, issuing a set of regulations on these gender issues,
particularly domestic violence and trafficking and those kinds
of things, are dramatically different from what was proposed.
And we're very concerned about that.
And we're very concerned about the repercussions that it
would have for domestic violence victims generally.
Mr. Berman. Thank you. And as I understand it, the current
regulations, which may be possibly rescinded, don't mandate
asylum, they simply don't render the person ineligible for
asylum?
Ms. Orloff. Absolutely. And not every battered woman who
comes to this country will get asylum. She will have to prove
that she could not get protection in her home country. So it's
a much narrower category of people, but a much more severely
needy category of people.
Mr. Berman. Mr. Nickell, I'm just curious. You started
off--I missed your initial testimony.
Mr. Nickell. Yes, sir.
Mr. Berman. But I looked quickly at just the summary, and
your first sentence sort of--first paragraph caught my
attention. You basically--if I could just get the exact quote
here, so I don't--``Thank you for your opportunity to testify
here before you today on this important issue. As you know,
immigration is a huge problem in our society and in our
country.'' You mean immigrants or----
Mr. Nickell. No, sir. Illegal immigration.
Mr. Berman. Only illegal. You aren't talking about
immigration.
Mr. Nickell. No, sir, just illegal immigration.
Mr. Berman. There are some people who are here as
immigrants----
Mr. Nickell. Yes.
Mr. Berman [continuing]. Legally, aren't there?
Mr. Nickell. Yes, sir, there are.
Mr. Berman. You might have been a little more particular in
how you drafted your statement.
But, in any event, I guess what I'd ask any of the
witnesses, do you think, to the extent that a population of
immigrants who came here illegally, against the law--over-
stayers of visas, people who cross the border illegally--
thought that if they reported a crime committed against them,
and particularly against others, or witnessed a crime, that the
fact that they would subject themselves to deportation might
impede their willingness to either report the crime or to
indicate they were a witness to the commission of a crime?
Mr. Nickell. I don't believe so. I've----
Mr. Berman. Oh, you don't think that somebody--``Oh, I'm
here, out of status. I watched a murder in front of my house. I
can identify the witness. But if I make myself available and
let people know that I saw this, I will be deported.'' That
isn't a deterrent to encouraging cooperation with local law
enforcement?
Mr. Nickell. I don't believe so, because I've been on
numerous, numerous scenes where it's either fatality accidents
or it's domestic violence or it has been murder scenes or major
assault scenes, where this person spoke no English whatsoever
but we took their statement right there at the scene, either
through an interpreter or letting them right it down.
Mr. Berman. This was in Houston?
Mr. Nickell. Yes, sir.
Mr. Berman. Where you don't have a policy of asking the
person what their legal status is?
Mr. Nickell. Correct. It's a catch-22.
Mr. Berman. That's my point.
Mr. Nickell. But----
Mr. Berman. Mr. Feinblatt, do you have any reactions to--do
you think the notion that you are going to be inquired about
your legal status and subject to deportation if you report a
crime will deter you in any fashion from reporting a crime or
your role as a witness to a crime?
Mr. Feinblatt. The greatest tool of law enforcement is
information. It's important that police officers be able to get
information from witnesses, from victims, from people who know
about the facts of a crime. And that is why I think the Federal
law wisely gives discretion to police officers to use their
judgment.
Mr. Berman. Thank you.
Mr. Hostettler. I thank the gentleman.
Ms. Jackson Lee. Mr. Chairman, would you yield just for a
moment? I just want to indicate that I have a hearing dealing
with the Columbia 7 tragedy, and I appreciate very much your
indulgence and your pardoning me from continuing, at this
point.
Mr. Hostettler. I thank the gentlelady.
Ms. Jackson Lee. Thank you very much. Thank you very
kindly.
Mr. Hostettler. The gentleman from Iowa, Mr. King.
Mr. King. Thank you, Mr. Chairman.
I would direct my first question to Ms. Orloff, please. You
stated in your discussion of Lucia that, if you call for help,
the INS will come and deport you was the fear that kept her
from calling for help, and that she believed that she had no
other option but submit to the beating and subsequent tragedy.
What, not having another option, what was her real fear,
then?
Ms. Orloff. Well, we actually have done some research on
this, and we've done a lot of work on immigrant victims. And
what we found is that, actually, the fear of deportation is the
greatest fear, and it blocks everything. We're not talking
about that, sure, they'd like to get a green card tomorrow.
That's not the issue. The issue is they don't know that they
can talk to the police, that they can talk to prosecutors, that
they can talk to victim services without----
Mr. King. The fear of deportation, and would take her back
to her home country. What did she fear there that was greater
than----
Ms. Orloff. Never seeing her children again. Having her
children raised by the abuser. That, for women, is the main
thing. It's that--she's married to a U.S. citizen. She's got
two kids here. He's going to----
Mr. King. I appreciate your clarification, and maternal
instincts are very strong. And that's a good point.
There's also a comment that you made: Domestic violence
rates are approximately the same among immigrants as they are
among nonimmigrants. And if they underreport as immigrants and,
in fact, illegal immigrants, then how do we know that domestic
violence is similar?
Ms. Orloff. There's been research--being done in immigrant
communities that has specifically aimed at--basically immigrant
survivors of domestic violence doing the interviews themselves
and disclosing in the interview process that this is a problem
that happens to everyone. And we are not talking about law
enforcement reporting data. We are looking at data among--that
is done within community among women that's more trustworthy in
that respect.
Mr. King. Survey information?
Ms. Orloff. Pardon?
Mr. King. Survey information?
Ms. Orloff. Survey information, that is consistent, more or
less, with the numbers we're seeing nationally.
Mr. King. Thank you very much, Ms. Orloff.
Ms. Orloff. Sure.
Mr. King. And then also I'd ask--direct to Mr. Feinblatt.
As I listen to your testimony, and the discussion here, three
of the four perpetrators had prior arrest records. And you
state that, let me see, three of the four have prior arrest
records?
Were they not adjudicated? What were the arrest records
for? And if New York City had been able to apply the full force
of the law would not that have been preventive police work in
the end?
Mr. Feinblatt. Well, let's start with what the Federal law
requires. It does not require an affirmative duty of police
officers----
Mr. King. We understand that.
Mr. Feinblatt [continuing]. To report. But the most
striking thing----
Mr. King. What could you have done to prevent this, as a
police department?
Mr. Feinblatt. The most striking thing about the records of
the three illegal aliens who had arrest records were that their
prior arrest records were for minor events: jumping the
turnstile, which means not paying your fare on the subway;
misdemeanor marijuana possession; trespass.
It is our experience in New York City, and I think the
experience of law enforcement throughout the country, that INS
responds--that when INS responds, it only will respond in the
most serious, the most notorious, the most heinous cases.
Mr. King. And I would state that if Mayor Giuliani's
approach to preventing crime on the streets could be applied
through the INS, I think we might see even better crime
statistics in New York City.
And just quickly a question to Mr. Nickell, or more a
comment: I'd ask you if you could elaborate on the situation
of--you said HPD, the Houston Police Department, will not
acknowledge INS warrants?
Could you elaborate on that, please?
Mr. Nickell. That was a conversation I had with one of the
supervisors at the INS regional office last week. I was
speaking to him exactly what I'm speaking here today abut just
trying to link into the IDENT system, so at least have one more
database link to find out anymore warrants or anymore--another
agency that may want this person we have in custody at that
time.
And his statement to me was that they couldn't even--or had
trouble getting the Houston Police Department to even
acknowledge felony warrants that they were issuing out, and
they were coming across through NCIC, just because it dealt
with INS. They were having trouble just, even on that level, of
getting cooperation.
Mr. King. Thank you, Mr. Nickell.
Thank you, Mr. Chair.
Mr. Hostettler. Thank the gentleman.
The Chair now recognizes the gentleman from Utah, Mr.
Cannon.
Mr. Cannon. Thank you, Mr. Chairman. I appreciate your
holding this hearing.
I would like to, first of all, thank Ms. Orloff for putting
the face of Lucia on the immigrant community. I want to assure
you, knowing the Members of this Committee, that we all have a
very strong feeling that we want to help people like Lucia.
We also have a very strong feeling for the victim of this
crime and the other victims of crime in America that are
committed by illegal immigrants. This is a difficult, confused,
and a very emotionally charged issue.
I understand that we have Fox News here today, who is
shooting video for Bill O'Reilly, for his show tonight. And so
I suspect we all are going to be on cable TV again.
Hi, Bill. I want you to remember, I am a hardliner on
crime, please.
You know, as you look at the panel, you represent radically
different views, geographically different, philosophically
different. This Committee, of course, reflects many of those
fundamental differences.
But in this area we have--there are some things that we
agree on in the area that's confused. And I'd hope to take a
couple minutes to get a consensus. You can nod, and I'll point
out for the record whether you nod or whether you disagree with
me.
But I'd like to ask a series of questions that help us
focus on what we're dealing with here, because over the next
couple of years, I would hope that we can actually create a
context where police can enforce the law more effectively,
where we can get assistance from Mexico in enforcing the law
against its citizens, and where we can help prevent both the
problems with people who are here illegally and suffering
because they live in the shadows, and also people who are here
illegally and committing crimes and being protected because
they're living the shadows, as that goes.
I mean, it's absolutely clear that you have many crimes in
the illegal community, is it not, probably a disproportionate
number of crimes among illegals as elsewhere?
I think--I would hope you would all agree, and I think
despite the very different perspectives you come from, that a
large portion--a large part of the reason why we have a
disproportionate criminal rate there is because, in our illegal
community, we have people living in the shadows.
You can nod or shake, I mean, if you disagree with that.
Actually, I'm looking at you, Mr. Feinblatt. I'd like to
respond--do you agree or not? I mean, the fact is, we have
these people living in the shadows. Is that not a fundamental
problem? Go ahead, if you have a----
Mr. Feinblatt. Okay. Well, it's a problem when you're
living in the shadows, but you're dealing with a lot of issues.
You're dealing with abject poverty----
Mr. Cannon. I understand that you're dealing with lots of
issues here, but the fact is, criminals hide because people----
Mr. Feinblatt. Oh, absolutely----
Mr. Cannon [continuing]. Illegals won't answer the door
when a cop or when an INS agent comes to knock.
Mr. Feinblatt. But it's also the criminals who come here
because they may be fleeing prosecution in their home country
as well.
Mr. Cannon. Absolutely. And so where do you--if you're
going to flee prosecution, where do you go?
Mr. Feinblatt. The United States.
Mr. Cannon. You go to a place where you can hide.
Mr. Feinblatt. Absolutely.
Mr. Cannon. And the fact that we have people living in the
shadows is a big part of our problem. And that's an agreement,
right?
Mr. Feinblatt. Yes, in that perspective, yes.
Mr. Cannon. I mean, what you have here, you've created a
safe haven in America for criminals to flee from Mexico, who
are dealing with drugs, to flee from Guatemala or from various
other countries, including Asia. We have a problem because of
our immigration laws, which encourage people to be here, which
make it--in fact, let me just ask.
Is it possible to get rid of 8 to 11 million illegal aliens
and not have a police state? A yes or no from each of you,
please.
Mr. Feinblatt. Absolutely not.
Mr. Cutler. No.
Mr. Nickell. No.
Ms. Orloff. No.
Mr. Cannon. The whole panel has said no, but we only have
one microphone there.
The fact is, we can't do that, can we? And that's the
essence of the problem. When you have a problem this big, we
have a huge problem and I see my time is about expired. There
are a number of issues upon which we're going to agree.
This debate is not going to go forward in America; we are
not going to solve this problem if we focus on a rape victim or
a victim of domestic violence. What we have to solve is the
problem of how we deal with 8 to 11 million people. And there
are a lot of people that are both sides.
I'll tell you in Utah, the census numbers were low. So I'm
inclined to think that that illegal alien population is on the
upper end of that--those guesstimates.
With that many illegal aliens, it means we either become a
police state and start kicking down doors and Heaven help us if
your daughter marries a Mendoza or a Martinez, because then
she's going to become the focus of that kind of police action.
The other side of it is that we create a program in America
where people can--in fact, I'd like an assent or a disagreement
here--a program, without the details, because the details are
very important here, but we need a program where people self-
identify. They come forward and say, ``I'm here. I have a job.
I'm contributing. I want a temporary status.'' And when we do
that, then you who are enforcing the law can focus on those
people who don't come forward. Is that not correct?
Mr. Cutler. Yes.
Mr. Nickell. Yes, it is.
Mr. Feinblatt. Yes.
Ms. Orloff. Yes.
Mr. Cannon. The whole panel is agreeing with that.
Now, we have a big problem in this panel to figure out how
we're going to do that. It's a huge problem. We have great
divisions. But underlying that debate is a very firm, common
ground where we agree as Americans on certain things.
And if we had more time, we could elaborate more. But I
appreciate your participation in the process of trying to
identify what we have in common as we face this problem.
Mr. Chairman, I yield back.
Mr. Hostettler. I thank the gentleman from Utah.
With the Subcommittee's indulgence, and that of the panel,
I would like to open a second round of questioning and begin
that by asking Mr. Nickell--and, first of all, thanking him for
his service to our country in Desert Storm.
Let me ask you, are you familiar with the charter of the
City of Houston, Texas?
Mr. Nickell. No, sir, not in depth. No, sir.
Mr. Hostettler. Are you trained on the policy regarding--as
it applies to the police department, of provisions within the
charter of Houston?
Mr. Nickell. No, sir. Just really the general orders and
SOP of the Houston Police Department itself, not the city
charter itself. No, sir.
Mr. Hostettler. All right. So if policy had changed within
the charter of the City of Houston, that would not--it's not
your experience in 11 years with the Houston Police that
provisions within the charter of the City of Houston would be
given to you and you'd be trained based on those provisions.
So my question is, if there was an executive order that was
philosophically regarded within that charter of the City of
Houston, you would not necessarily know that executive order
had been changed as a result of that?
Mr. Nickell. No, sir, not when it comes to the city council
doing that business, and the mayor, no, sir, just what comes
from the chief down.
Mr. Hostettler. All right, okay.
Mr. Feinblatt, you understand my line of questioning. I
don't really have a question for you, except to state that my
line of questions earlier was that there was--I understand the
change that was made in the charter.
Line officers don't necessarily have that information. And
so we don't have a member of the New York Police Department
here, and so I won't speak for them. But it's difficult for the
Chair to understand how a philosophical annotation within the
charter of a city is going to somehow change the policy and the
procedures of the department with regard to the police.
And that's why I'm going to ask you to provide for the
Committee the executive order and all policy guidelines that
are in place now in New York to change the policy and/or
guidelines affected by Executive Order 124 since 1989.
And so if you would provide that to the Committee, that
would be very much appreciated.
Mr. Cutler, I have a question for you, actually.
Mr. Cutler. Yes.
Mr. Hostettler. You stated that you worked for the INS
prior to the issuance of Executive Order 124. What sorts of
information were you able to obtain from the New York City
government prior to the issuance of that order?
Mr. Cutler. Well, as I mentioned during my opening remarks,
one of the things I was doing was to investigate marriage
fraud. And it was extremely helpful that I could walk in and
actually get access to the welfare computer and make a
determination--we would have a young lady, for example, who
would say, ``Well, I'm married to my husband for the past 4
years. I want him to become a resident of the United States. We
plan to live forever and ever as husband and wife.'' And we
would think, ``Well, that's wonderful.''
And then you go and check with the welfare folks and you
found out, for the last 4 years, she's been collecting welfare,
claiming to be a single parent with four children. Well, she
either was lying to welfare or she was lying to the INS or
maybe she was lying to everybody.
And by our working cooperatively with the city officials,
we were able to accomplish a couple things. We were able to
break the marriage frauds. We were also able to get people off
of the welfare roles who had no lawful right to gain welfare
because they were committing fraud on their applications.
It was a real symbiotic relationship.
We also were, I think, doing perhaps a little bit better,
at that time, getting cooperation with the New York City parole
and probation folks.
You know, one of the things that sometimes happens, when
there are orders that are out there that say ``don't
cooperate,'' police officers, like anybody on any job, want to
be successful. INS agents are the same way. So you approach
your job by saying, ``What do I need to do so that I can do the
best job I know how, but without stepping on any toes, without
getting fouled up by running into a law or regulation or an
executive order that can do harm to my career?''
And if they hear the general phrase, ``INS is a problem,''
then INS becomes radioactive.
Mr. Hostettler. Let me ask you a question with regard to
that. I'm sorry to butt in.
Mr. Cutler. Yes.
Mr. Hostettler. Are you suggesting that you in the INS, a
Federal agency, perceive that your career path may be affected
by interaction with a non-Federal agency and the response that
that action may have----
Mr. Cutler. We wouldn't get jammed up by working with the
cops. But I think that some police officers or probation people
may have had concerns that if they talk to the INS and they
weren't supposed because of Executive Order 124, the easiest
thing--if I said to you a particular type of food may or may
not have bacteria, you may say, ``Well, gee whiz, I'll just
avoid that whole form of food and not worry about it.'' Well,
it's the same kind of thing here.
If there's a regulation out there that restricts what I can
and can't say to an immigration agent, I'm better off avoiding
those guys. That doesn't mean that police officers didn't work
cooperatively with us. They did.
In the early '70's, or the mid-'70's, when I became and
agent, I worked very closely with the police officers in the
71st Precinct, tracking down folks from the Caribbean who were
primarily, in that neighborhood, involved with gunrunning and
narcotics and that sort of thing. And it was a wonderful
working relationship.
And as I've said before, there's a synergy that exists when
you can get various law enforcement organizations to work
together. We don't have a national police force, but what we do
have are these task forces, whether it's the Joint Terrorism
Task Force, and I spent some time working with them. I spent
10, 12 years working with the Organized Crime Drug Enforcement
Task Force. What happens is a lot of the barriers come down.
If you're riding day in and day out with people from other
agencies--a police officer, an FBI agent, an ATF agent--we work
cooperatively because that's the nature of law enforcement. You
rely on each other to go home in one piece at night.
And you find that you can accomplish a lot more than if you
were working as an isolated officer in one little corner. Cops
and agents working together are a dynamite team. And INS winds
up getting ostracized.
I feel bad for people that are being exploited or being
abused or being assaulted. You know the one point I want to
make, and I think it's important, is to understand that when I
went to work as an Immigration agent, it wasn't me against the
alien community. I wasn't there because they were my opponents.
I was there to enforce the laws that concerned aliens. Aliens
weren't our enemies.
But when these rules come out, it makes it sounds as though
we're the heavies. ``Oh, there's that INS agent. You don't want
to talk to those guys. They pick on those poor illegal
aliens.''
One other fast point that I would like to make: Illegal
aliens are fearful, at times, to interact with law enforcement
authorities because of the fact that they're illegally in the
country. I feel awful to hear stories of abuse.
In fact, I've arrested illegal aliens who abused their
wives. We had a few of those, where the guy would do a number
on his wife and she'd come in and say, ``You know, I don't
understand my husband. I filed for him to get a green card. And
then the guy goes home, gets drunk, beats the hell out of me
and my two children.'' So we would go out and arrest him, and
he was the abuser.
But what you have to understand, though, is that if aliens
are reluctant to come forward because they're illegally in the
country, that maybe you want to have a certain dynamic concern
about, ``Should I talk to the law enforcement authorities if I
shouldn't be in this country in the first place?'' I'm not
talking about victims of spousal abuse. That's a heinous
situation. That's horrible.
And when you talk--I know Mr. Berman isn't here, but he was
talking about whether or not people would talk to the police if
they were illegally in the country, for fear of what might
happen. They might also be fearful of getting killed by the
killer.
There are lots of concerns, and I'm sure, as a police
officer, you'll bear this out. Many people have many concerns
about going to the authorities to report crimes and what they
observed, and that sort of thing. There's a lot of barriers
that you have to overcome in law enforcement to get people to
open up to you.
But I also think that if someone is illegally in the
country and they have concerns, that we have to do something to
discourage the whole world from coming illegally into the
United States. You know, this is a two-headed thing.
So I certainly have tremendous sympathy for any spouse who
gets abused. I don't want to be misunderstood. I have
tremendous sympathy and empathy for victims of crime, but I
also think we need to have a better control over who is coming
into the country, because, again, it creates the kind of
environment that we were talking about earlier, of people
living in the shadows, where other people come in to those
environments and manage to hide.
And that's a real serious problem for our country. Look at
the number of people that get arrested for criminal activities
that are part of the alien community. It's a small percentage
of the alien community, but it's a big part of our criminal
problem.
I hope I've answered your question.
Mr. Hostettler. Yes, sir. Thank you very much.
Mr. King. Thank you, Mr. Chairman.
I would direct my question to Mr. Feinblatt. In the
previous questioning, I asked about the level of crimes that
were committed by the illegal aliens. And one of the things you
mentioned was turnstile jumping. And as I look at this list
that I had provided to me, I also see crimes such as criminal
possession of marijuana entered more than--on a number of these
defendants, and also criminal trespass and criminal possession
of a weapon, assault with intent to cause physical injury,
unlawful imprisonment, and criminal possession of stolen
property, attempted robbery in the second degree. That's just
some that I pick out of here.
And then I refer you back to the statement you made that
the first obligation of New York City police officers is and
always will be to ensure that the defendants are taken into
custody and promptly brought before a judge as required by law.
I wonder if you might rethink that. And I'd ask you if that
first obligation might be the safety of the people, all the
people in the jurisdiction, and also to uphold the Constitution
and rule of law, if those might be paramount to the first
obligation, as you stated.
Mr. Feinblatt. New York City is enjoying 48-year lows in
crime. There is absolutely no question that the New York City
Police Department is 100 percent committed to the safety of its
citizens, both those whole live in New York City, those who
work in New York City, and those who visit New York City.
And it is because we have been so effective that we've been
able to drive those crime rates down while they are increasing
in other cities.
Mr. King. While we are making comments that tend to, I
think, gloss over this subject--turnstile jumping versus the
list of these other deportable crimes----
Mr. Feinblatt. Let's look at the record.
Mr. King. Aren't the victims--aren't the families of the
victims looking at this from a different viewpoint in that they
may have their family member alive had there been an
opportunity to do a better job of cooperating, coordinating,
and networking with all the law enforcement agencies in the
country?
Mr. Feinblatt. First of all, in this case, I think we have
to make absolutely clear that we are examining the records, and
we do not know whether INS was contacted or not. We are
reviewing those records.
Second, I think that we should look at the cases. Three of
the illegal aliens had arrest records. In 100 percent of the
cases, the police department asked the defendants about their
citizenship. In seven out of the 12, the defendants falsely
claimed that they were U.S. citizens. And, therefore, in the
split-second decisions that a police officer has to make, he
was confident that they were not illegal aliens.
Of the five cases remaining in which the defendants
admitted they were not citizens, four were misdemeanors: One
was a fare beat, a victimless crime. One was marijuana
possession, which under the laws of New York State can be
dismissed by judge over the objection of a prosecutor. The
second was a fistfight. And the third was a shoplift case.
Do we take those cases seriously? Absolutely. But they are
misdemeanor cases.
The one remaining case in which one of the defendants said
that they were noncitizen was a robbery case, which is a
felony. However, I would like to point out that the victim of
that case was Jose Hernandez, who was one of the other
defendants in this case. And that case went nowhere.
I would also like to point out to you the response by the
INS. In an internal memo that we have from the INS, which I
would like to share with you, it directs INS agents how to
respond when local law enforcement request detainers, which are
holds.
It says, and it instructs INS personnel to do the
following: First, explain to the requesting agency the risks
and financial burdens on the localities of lodging a detainer.
It specifically says: First, explain that the alien could
concede to deportability and then, therefore, leave the
country. And also explain that by contacting the INS, it could
place the defendant in custody out of State, causing the local
entity to have to bear transportation costs.
It then goes on to say that if the official persists with
their requests, advise them the following: They must make their
request in writing. The letter must come from a person in a
position of authority, not a police officer or an assistant
D.A.----
Mr. King. Thank you, Mr. Feinblatt.
Mr. Feinblatt [continuing]. But a bureau chief.
Mr. King. I see that our time is up.
Mr. Feinblatt. The letter must state that they understand
the risks. And finally, the decision of the INS can only be
made by the assistant district director.
In a case of jumping the turnstile, in a case of
shoplifting, in a case of marijuana possession, which would be
disposed of in any jurisdiction either the same day of an
arrest or the next day, it would probably take INS weeks to
fulfill their own directive.
We report. We were never under E.O.-124 told we could not
report. In fact, there was a specific carve-out----
Mr. King. Mr. Feinblatt, thank you very much. You've made
your point.
Mr. Feinblatt. And in the instant case----
Mr. King. And, Mr. Chairman, I see my time is up.
Mr. Feinblatt [continuing]. We did report.
Mr. King. And I'd ask unanimous consent for a minute for a
further question.
Mr. Hostettler. Without objection.
Mr. King. Thank you.
I find your testimony factual, and I find it to be
passionate, and I find it to be somewhat defensive, as well. I
do understand that the INS is short of resources, and it's
difficult to cooperate. And I recognize that you do a great job
in New York, protecting the people in the City of New York, and
also that there are problems and difficulties with the
cooperation.
And so I would like to--my last question to you, Mr.
Feinblatt, will be, what is your recommendation? From the
perspective of the New York City Police Department, what could
you have done better under the circumstances that we had? And
in a very brief moment, without going into resources for INS
and cooperation, was there a mistake made by the New York City
Police Department? Would you do that over again? And then, what
is your recommendation for policy?
Mr. Feinblatt. As I have explained, when the detectives
made the arrest in the rape case, they report it to the INS.
There is no question about that. And detainers followed.
In the previous cases that we have discussed, in those
cases where the defendant actually said, no, they were not
citizens, we have not finished our review to find out whether
the INS was contacted. Even if they were contacted, I think I
have made it clear, and I think all of us who are familiar with
the INS know that it is unlikely that anything else would have
happened. I regret that, because I regret that there was a
victim who was caused immeasurable harm in this case.
What I would suggest for the future is, we have to look to
technology. The probation department of New York City has
installed an INS computer. We are now working on having our rap
sheets labeled, whether somebody is here in the country
legally.
At every time there is an arrest in any city of the United
States, that should be able to connect to an INS computer.
Let me just tell you that, in New York City in 2002, there
were 337,000 arrests. There were 15,000 appearance tickets. And
there were 375,000 summons. That's over 700,000 cases.
New York is committed to using technology to further law
enforcement ends. We have done it in our COMSTAT program. We
will do it in this instance. And that will continue to drive
crime down.
Mr. King. Thank you, Mr. Feinblatt.
Thank you, Mr. Chairman.
Mr. Hostettler. The Chair now recognizes the gentleman from
Arizona, Mr. Flake.
Mr. Flake. No questions at this time, Mr. Chairman.
Mr. Hostettler. Thank the gentleman.
I have another round of questions. I would like to read to
Officer Nickell the procedure, and with unanimous consent, I
would also ask for the General Order 500-5 of the Houston
Police Department to be offered into the record.
[The Houston Police Department order follows:]
Mr. Hostettler. Officer Nickell, you're probably familiar
with this, but if I can read it to you: Officers shall not make
inquiries as to the citizenship status of any person, nor will
officers detain or arrest persons solely on the belief that
they are in this country illegally. Officers will contact the
Immigration and Naturalization Service regarding a person only
if that person is arrested on a separate criminal charge--
parenthetically, other than a Class C misdemeanor--and the
officer knows the person is an illegal alien.
Officer Nickell, could you explain to me what a Class C
misdemeanor is?
Mr. Nickell. It's the lowest form of misdemeanor. Anything
like public intoxication, urinating in public, anything of
that--just a low level of $500 maximum fine and one night in
jail type of violation.
It's equivalent--a traffic violation and a Class C
misdemeanor would be about the same thing.
Mr. Hostettler. All right, so a traffic violation, a
routine stop, is essentially a Class C misdemeanor?
Mr. Nickell. Yes, sir, they're the equivalent. Yes, sir.
Mr. Hostettler. The equivalent.
Mr. Nickell. Yes, sir.
Mr. Hostettler. So the most prevalent type of activity by a
line officer is precluded from being--from discussion with the
INS about the person that is an illegal alien, potentially?
Mr. Nickell. Yes, sir. And that is my contention, because
last year, the Houston Police Department wrote more tickets
than any police agency in the United States, 880,000 citations.
Plus we average over 100,000 automobile accidents a year and
normally average anywhere from 4,000 to 6,000 DWI arrests a
year. That's just in traffic-related accidents.
That's close to 1 million contacts that we're coming across
we're not able or allowed to even inquire into their status
just by database alone.
That's my contention, is that we at least be able to
connect to the database with INS so we can get the answer over
our computers in the car, or, if they're arrested and taken--if
they have no ID and they're arrested and taken to jail, we can
then fingerprint them, what we call over-the-counter, which is
a live scan. If that was also linked into INS, we would also
know then if that person--just a Class C misdemeanor--we would
know then if they're wanted with anything with INS, on any type
of warrant.
Mr. Hostettler. But this order would preclude you from even
doing that, if you had the capability, wouldn't it?
Mr. Nickell. Well, that's what I'm trying to get changed as
of right now, also.
Mr. Hostettler. Right.
Mr. Nickell. Right now, I have a legal challenge to this
general order, up through our chief, through our legal
services, for a legal opinion from our county attorney, our
city attorney, and the U.S. Attorney General's office there in
Houston. So I'm challenging this whole general order, not just
here today, but I'm also challenging it back in Houston, its
validity and legality, as it relates to police officers, from
precluding them from enforcing all laws of the United States.
Mr. Hostettler. Right, because, traditionally, that's what
law enforcement does at the local level, is to help to enforce
laws on the local, State and Federal level. Is that not----
Mr. Nickell. Yes, sir. And that's, like I stated in my
opening statement, is, we'll gladly join hands with the DEA and
the FBI if it's a high-profile case. But yet, the INS is a red
herring. We want nothing to do with it.
So if you went down on the streets of Houston right now and
asked any line officer down there any of these questions, ``Are
you barred from asking anything about immigration?'' they would
tell you yes, because that is what they see this policy is, is
a barring policy from asking any questions along those lines.
Mr. Hostettler. Very good. Thank you.
Mr. Feinblatt, I have a question with--regarding the
directive that you have submitted, and we will submit, without
objection, to the record, from the INS.
[The INS directive follows:]
Mr. Hostettler. You understand that this is informative to
local police. And it seems to me to be very helpful to educate,
to inform, New York City of the potential costs of detaining an
illegal alien.
I would think that would be very helpful. Now, are you----
Mr. Feinblatt. Generally, if there is a hold on an illegal
alien because bail has been set, that would supersede any
detainer, and so you couldn't take somebody out of the
jurisdiction.
Mr. Hostettler. Right.
Mr. Feinblatt. As long as bail had been set. And so, in
fact, in most cases, they would not be removed to another
jurisdiction.
But clearly the important thing here is, in law
enforcement, we have to work in--make split-second decisions
and split-second actions, and this is not a split-second
process.
Mr. Hostettler. You mean because of the cost involved?
Mr. Feinblatt. No. Because if a prosecutor wants to get a
detainer, they want to get it because they're fearful that
somebody might make bail who is in custody. And so writing a
letter, getting your superior to write a letter, restricting
INS to only be--that the decision by INS has to be made by an
assistant district director, by the time that process is done,
somebody is going to make bail, and it's going to be impossible
to actually hold them. And that's why a local prosecutor or
police would generally seek a detainer.
Mr. Hostettler. Mr. Cutler, you have a remark you would
like to make?
Mr. Cutler. If I could, the point is that INS only takes
aliens into custody and puts them at the INS detention facility
or a jail space that we've arranged for, that sort of thing,
for only one reason, and that's to be able to remove the alien
from the United States.
I have many disagreements with INS management in New York,
but this is one instance where I understand what Mr. Molerio,
who is the assistant district director for investigations, was
trying to say.
And what he was trying to say here is that if we take
custody of somebody who is facing criminal charges, we only
hold on to him in our very limited immigration facilities to
effect his removal from the United States.
If INS had an alien in custody and that alien said,
``Here's my passport. I want to go home,'' INS is supposed to
remove him.
We can't go beyond the bail that's set at a State level or
a city level. In other words, if this guy makes bail and INS
picks him up, the risk there, and it's happened in some cases,
is that we could inadvertently, or whatever, wind up deporting
somebody who is facing criminal charges. Now he's back in his
country. And if you wanted to pursue that prosecution beyond
that, you'd have to extradite him back into the United States.
So that's counterproductive. I sometimes think that INS
works in very unwieldy ways, and I could tell you that are many
times when I think that management decisions aren't always done
the way they should be done, and sometimes it's against our own
best interests. But as far as the process of lodging detainers,
that's only done to bring someone into INS custody so we could
effect his departure. Otherwise, we have to put the guy back
out on the street.
Let's say bail is set at $10,000 in a robbery case. We take
custody. He makes the bail. How can we then hold on to him
after he's made bail, unless we're planning to deport him at
that point?
So that's the reason that this ruling came down. This memo
is reminding people about the reasons why INS would lodge a
detainer in the first place. I hope that clarifies it for you.
Mr. Hostettler. Yes.
Mr. Cutler. But one other thought, if I could just take the
moment. Maybe what needs to be done is better cooperation, in
terms of education. In other words, sometimes local prosecutors
allow an alien to plea bargain away a deportable offense in the
interest of what's expedient. Now, that doesn't help anybody.
If you've got a drug charge and then the guy winds up with
disorderly conduct, why give up that drug charge that could
render him deportable?
And on the other hand, if you've got an illegal alien who
is an extreme risk of flight, maybe there needs to be
cooperation and coordination so that an INS agent, if you can
get somebody done, or even an INS attorney, could go and speak
to the judge in the State case to explain risk of flight.
I know I have done that a number of times and that's been a
very effective avenue.
So there are cooperative arrangements that I think should
be made so that people wouldn't be tripping over each other but
rather working with each other. That's just, you know, from a
field agent's perspective, I think that could be a much more
effective way of doing business, to maybe prevent this sort of
thing from happening in the future and getting the most out of
each agency's authority and resources, as a suggestion to you.
Mr. Hostettler. Thank you. Very helpful.
And, Ms. Orloff, I apologize. We have detained you too
long. You are excused from this panel, if you so desire, to
make that flight.
Ms. Orloff. Thank you very much. I'm going to try.
Mr. Hostettler. Sure.
Any questions from the Committee, Subcommittee?
Well, if not, I really want to thank----
Mr. Feinblatt. Mr. Chairman, can I make a clarification?
Mr. Hostettler. Yes, Mr. Feinblatt.
Mr. Feinblatt. I want to be clear about what Mayor
Bloomberg did say after the tragic events of September 11th. He
said that he would provide services to people and make sure
that those services were delivered. He said that the Federal
Government should enforce the immigration laws. They should not
have immigration laws on the books if they are not going to
enforce them.
Mayor Bloomberg never said that the New York Police
Department will not report people to the INS.
Mr. Hostettler. I thank the gentleman.
And I once again thank the witnesses for your indulgence.
We will enter Executive Order 500-5 into the record, which
it has been, the directive. And we will leave the record open
for 3 days for comments, from any members of the panel or the
Subcommittee.
And, once again, Mr. Feinblatt, I would like to ask you to
supply to this Subcommittee guidance that has been given to the
NYPD or the process that is now ongoing to create guidance to
the NYPD to allow the facilitation of communication with the
INS.
And with that, the work of the Subcommittee is over, and we
are adjourned.
[Whereupon, at 11 a.m., the Committee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas, and Ranking Member,
Subcommittee on Immigration, Border Security, and Claims
According to newspaper accounts, on December 19, 2002, a group of
young, homeless men surrounded a couple sitting on a bench in an
isolated part of a Queens, New York, park. They beat and robbed the man
and savagely raped the woman. Apparently, four of the men were
undocumented aliens from Mexico who had been arrested previously. One
of the questions for this hearing is whether a New York City policy
prevented the police involved in the previous arrests from reporting
the men to the Immigration and Naturalization Service.
The policy in question is set forth in Executive Order No. 124,
which was issued by New York Mayor Edward Koch on August 7, 1989. It is
entitled, ``City Policy Concerning Aliens.'' This order prohibits the
transmission of information about an alien to the immigration service,
but the prohibition has three exceptions, one of which is for the
situation in which the alien is suspected of engaging in criminal
activity. This order, therefore, did not prevent the police from
reporting the homeless men to the immigration service when they were
arrested previously.
The pertinent issue regarding that case is whether the New York
Police Department should have been required by federal law to report
the homeless men to the immigration service.
I do not want local police forces to enforce immigration law.
Immigration law is a complicated body of law that requires extensive
training and expertise. Local law enforcement officials do not have the
training and expertise that is necessary to determine who is present
lawfully and who is not.
Community-based policing is one of the most powerful law
enforcement tools available. By developing strong ties with local
communities, police departments are able to obtain valuable information
that helps them to fight crime. The development of community-based
policing has been widely recognized as an effective tool for keeping
kids off drugs, combating gang violence, and reducing crime rates in
neighborhoods around the country.
In immigrant communities, it is particularly difficult for the
police to establish the relationships that are the foundations for such
successful police work. Many immigrants come from countries in which
people are afraid of police, who may be corrupt or even violent, and
the prospect of being reported to the immigration service would be
further reason for distrusting the police.
In some cities, criminals have exploited the fear that immigrant
communities have of all law enforcement officials. For instance in
Durham, North Carolina, thieves told their victims--in a community of
migrant workers and new immigrants--that if they called the police they
would be deported. Local police officers have found that people are
being robbed multiple times and are not reporting the crimes because of
such fear instilled by robbers. These immigrants are left vulnerable to
crimes of all sorts, not just robbery. In 1998, Elena Gonzalez, an
immigrant in New Jersey, was found murdered in the basement of her
apartment. Friends of the woman say that the suspected murderer, her
former boyfriend, threatened to report her to the INS if she did not do
what she was told.
I also want to point out that Immigrants have performed heroic
deeds in our country. For instance, Kwame James, a Canadian immigrant,
risked his life to subdue a terrorist on an airplane. This professional
basketball player was one of the men who subdued shoe-bomber Richard
Reid aboard a Paris-to-Miami flight in December of 2001. James had been
playing for a French team and was on his way home when the attack
occurred. Asleep, he awoke to a plane full of screaming people. A
flight attendant approached him for help. He rushed back to where Reid
was struggling with passengers and crew. At 6 feet 8 inches and 220
pounds, James still had to struggle to hold down Reid, who was about
the same size. Afterwards, he saw the flight attendants take away
Reid's shoes, which were filled with plastic explosives.
Many communities find it difficult financially to support a police
force with the personnel and equipment necessary to perform regular
police work. Requiring state and local police forces to report to the
immigration service would be a misuse of these limited resources. The
immigration service also has limited resources. The immigration service
does not have the resources it needs to deport dangerous criminal
aliens, prevent persons from unlawfully entering or remaining in the
United States, and enforce immigration laws in the interior of the
country. Having to respond to every state and local police officer's
report of someone who appears to be an illegal alien would prevent the
immigration service from properly prioritizing its efforts.
Local police can and should report immigrants to the immigration
service in some situations. The decision to contact the immigration
service, however, should be a matter of police discretion, not a
federal requirement.
----------
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress From the State of Michigan, and Ranking Member, Committee
on the Judiciary
Without a doubt, the victim in this brutal gang attack survived a
horrendous crime. My heart goes out to her and her family as she tries
to repair her life from the damage done that night. Even one such
attack is more than what any person, or our society should have to
bear. Unfortunately these attacks do not occur infrequently and they
are often at the hands of U.S. citizens. But this attack, allegedly
committed by 5 men, should not be used to paint the lives of all
immigrants. Nor should we enact policies to round up any and every
immigrant suspected or accused of committing a crime.
That's why I must express my true disappointment that the first
topic we are addressing in this subcommittee in the 108th Congress is
this unfortunate and terrible attack. We appeared to be off to a good
bi-partisan start when we reached agreement in the oversight plan on
critical immigration and border security issues facing this nation. I
hope that this Committee will soon address issues such as how to
improve our border security while respecting the civil liberties of
immigrants and travelers, serious problems plaguing our refugee
program, failures of our immigration laws to adequately protect victims
of sexual trafficking and coercive family planning policies, examining
the positive contributions immigrants make in the American economy, and
the efficiency, effectiveness and consequences of the National Security
Entry-Exit Registration System.
But today we are looking at New York City's so-called ``sanctuary''
policy. My colleagues have given this policy that term but the neither
the Executive Order that put this policy in place, nor the rule that
implements it, refers to or even describes a situation of giving
criminals sanctuary, as they would have you believe. In fact, the Order
does not protect immigrants who engage in criminal activity from
immigration enforcement. Even immigrants who are have not been arrested
or convicted, but are merely suspected of criminal activity, can be
reported to the INS under this Order.
Instead, this policy and others like it are critical contracts
between the immigrant communities and the local government authorities.
Before it was signed by Mayor Ed Koch, immigrants in New York were
afraid to report crimes that they witnessed in their communities or in
their homes. They were afraid to seek help from the police and fire
personnel when they or others were in jeopardy. They were afraid to get
medical services for family members or interact with school officials
for fear that they, a family member or house-mate would be jailed in
INS detention and deported.
Without policies like this, the police and other officials cannot
gain the trust they need to serve and protect everyone in the
community. In the case of this attack in Queens, the victim was
reportedly an immigrant who may or may not have legal status or
citizenship. Her companion may have also been an immigrant. If not for
a policy like this, he may not have gone to the police when she was
abducted, and she may have died or suffered more as a result. If not
for a policy like this, she may have been unwilling to be examined by
doctors or to talk to the police after her attack. Either or both of
them could refuse to testify at trial or sign affidavits that could be
critical to the conviction of the attackers. Is that the kind of result
we want? Forcing all police or local government officials in any
jurisdiction to report on the immigration status of everyone they
encounter in their line of work will handicap the them and will leave
immigrants vulnerable and unprotected.
In addition, requiring local police officers and government
officials to report individuals to the INS creates a host of other
problems. It encourages racial and ethnic profiling and could subject
citizens and other law-abiding individuals to hostility and unwarranted
detention or questioning. It gives local officials immense power to
coerce, bribe or otherwise victimize immigrants as some renegade Los
Angeles police did in the Rampart scandal several years ago. It would
destroy good relationships that have been painstakingly developed with
immigrant communities--relationships that could prove crucial in
uncovering real terrorist or criminal threats. And it would misdirect
INS resources towards checking on millions of people who would be
reported at a time when they are already overwhelmed with information
management problems.
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