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Regarding the Increasing Role that New York City Agencies Play in Facilitating the Detention and Deportation of Immigrants

Testimony of Udi Ofer and Andrea Callan on Behalf of the New York Civil Liberties Union before the New York City Council Fire and Criminal Justice Services Committee and Immigration Committee on New York City’s Collaborations with U.S. Immigration and Customs Enforcement

The New York Civil Liberties Union presents the following testimony to request that the City Council oppose the increasing role that New York City agencies play in facilitating the detention and deportation of immigrants living in New York City. Since 1951, the New York Civil Liberties Union (“NYCLU”) has been defending the rights and freedoms of New Yorkers. The NYCLU has 48,000 members and eight offices across New York State. We present our testimony today as part of our continuing advocacy to protect the rights of immigrant New Yorkers.

Elected officials and members of the public often describe New York City as a “sanctuary city” for its hundreds of thousands of undocumented residents. Yet while New York City does maintain a wall of confidentiality between non-law enforcement agencies and federal immigration authorities, in the context of the criminal justice system, such a wall has been crumbling for many years. Currently in New York City, immigration enforcement officers have a permanent presence in our city’s largest jails, and may soon have a direct line to our local police precincts. As a result, what may have once been a sanctuary city has now become a municipality that facilities the deportation of thousands of its residents every year.

New York City has a long history of embracing its immigrant communities and their contributions to the city’s diversity, culture, and economic strength. In September 2003, Mayor Bloomberg strengthened that bond when he signed Executive Order No. 41, which has commonly been described as establishing a “don’t ask, don’t tell” mandate on city employees who come in contact with undocumented New Yorkers. However, as the NYCLU and other organizations noted at the time of the issuance of Executive Order 41, the order fell short in one important respect: Executive Order 41 carves out exceptions for collaboration between law enforcement officers and federal immigration authorities. Under EO 41, law enforcement officers may inquire about a person’s immigration status when investigating illegal activity other than mere status as an undocumented immigrant, and cooperate with federal immigration authorities in investigating and apprehending immigrants suspected of criminal activity. The latter authorization applies to Department of Correction officials as well.

Executive Order 41 provides few protections from the unprecedented collaborations that are taking place between municipalities and federal immigration authorities across the nation and in New York City. Beginning with former President George W. Bush and continuing aggressively under the administration of President Barack Obama, the federal government has aggressively implemented a series of immigration enforcement programs that partner-up with local law enforcement agencies (LEA) to enforce federal immigration laws. These enforcement programs represent an unprecedented shift in responsibilities for immigration enforcement from the federal level to local authorities. ICE currently administers an entire suite of enforcement programs under the umbrella of ICE ACCESS (Agreements in Cooperation in Communities to Enhance Safety and Security), which includes 14 different enforcement programs. Some, such as “287(g) program,” directly deputize local law enforcement agents to act as immigration enforcement officers, with powers to arrest individuals for immigration law violations. Yet others, like the ones being implemented or being considered for implementation in New York City, also lead to local enforcement of federal immigration laws by providing immigration officers with unprecedented access to individuals who come in contact with local law enforcement agencies.

In the following testimony, we focus on two of these programs: the Criminal Alien Program (CAP) currently in operation at Department of Corrections facilities such as Rikers Island, and Secure Communities (S-Comm). We first describe the operation of these programs, and then explain the concerns raised by each. We end with a series of recommendations for the New York City Council.

I. Criminal Alien Program
The Criminal Alien Program identifies non-citizens detained in state and local jails, and subjects eligible detainees to an immigration hold and potential deportation upon release from local or state custody. The program operates in different ways in each jail or prison, but in each case correction officials grant ICE agents permission to interview foreign-born inmates in person or via video-conferencing, or to access the jail’s databases containing information on the inmates held there. If ICE agents suspect that an inmate is an undocumented immigrant based on the information shared by correction officials, it will issue an immigration detainer requesting that the individual be held after the locality or state relinquishes authority. Federal regulations allow jails to hold immigrants at ICE’s request for no more than 48 hours (not counting holidays and weekends) so that they can be taken into federal custody.

Immigration and Customs Enforcement has had a presence at Rikers Island since 2003. Currently, ICE maintains an office staffed by fifteen agents at Rikers Island, who hold daily interviews with detainees whom ICE suspects are undocumented immigrants or documented immigrants that may lose their status and become eligible for deportation because of the charged criminal offense. According to NYU Law School’s Immigrant Rights Clinic, most of the interviews at Riker occur less than 24 hours after an inmate’s admission, and immigration agents, who sometimes appear in plain clothes and do not identify themselves, are not required to provide information about an inmates’ right to refuse the interview or to have an attorney or interpreter present during the interview.

Advocates in New York City have raised numerous concerns with the operation of the CAP program at Rikers. According to numerous reports, non-citizen inmates too often don’t know that they are speaking with an ICE agent, understand that they could be placed into deportation proceedings as a result of the information they share with such agents, or realize that they may refuse to consent to an interview with ICE agents. The Department of Correction has stated that it will address some of these concerns.

Between 2004-2009, more than 13,000 inmates at Rikers Island have been placed into deportation proceedings as a result of the Criminal Alien Program. According to information obtained through a Freedom of Information Law request filed by the Immigrant Justice Clinic of Cardozo Law School, ICE agents question about 4,000 inmates about their immigration status out of 105,000 jailed annually at Rikers Island, with about 3,200 immigration detainers issued annually. Nationally, large numbers of immigrants have been swept into deportation proceedings through CAP; in 2009, 48 percent of all deportable immigrants identified by ICE agents were discovered as a result of CAP.

II. Secure Communities
In late 2007, former President George W. Bush began implementing the Secure Communities program to identify immigrants eligible for deportation by running the fingerprints of every arrestee in a locality through the Department of Homeland Security’s (DHS) biometric immigration database. Upon arrest for an offense that requires fingerprinting, an arrestee’s fingerprints are taken by the local LEA and forwarded to that state’s criminal information bureau. The state agency then forwards the fingerprint data to the FBI Criminal Justice Information Services (CJIS) for routine screening for other outstanding warrants and previous convictions. Next, under the operation of S-Comm, the FBI shares that fingerprint data with ICE who then runs the fingerprint data against its biometric database called US-VISIT IDENT. If a “match” is found, ICE sends an “Immigration Alien Query” (“IAQ”) to its Law Enforcement Support Center (“LESC”) where a determination will be made on whether or not an immigration detainer will be issued upon the person identified as a “match.” If the decision is made to issue an immigration detainer, the LESC will issue an “Immigrant Alien Response” (“IAR”) to the ICE Field Office nearest to the local facility where the arrestee is being held and to the local LEA holding the subject detainee. The local ICE Field Office issues the immigration detainer to the local LEA, requesting that the LEA transfer custody to ICE once the LEA relinquishes custody.

Secure Communities is the newest and most aggressive immigration enforcement program sweeping across the United States. Since 2007, 467 jurisdictions in 26 states have joined the program and ICE has publicly stated that it plans to have the program in place in every law enforcement agency in the country by 2013.
Records obtained through FOIA litigation reveal that from 2008 to 2010, more than a quarter of the individuals who were deported after being identified by S-Comm were classified by ICE as “non-criminals,” meaning they had no criminal conviction on record. Seventy-nine percent those deported were either non-criminals or were picked up (and not necessarily charged or convicted) for lower level offenses. Only 21 percent of the people deported had been charged with or convicted of what ICE classified as a “Level 1” offense, encompassing more serious felony offenses.

On May 18, 2010, the New York State Division of Criminal Justice Services entered into a Memorandum of Agreement authorizing S-Comm in New York. When DCJS entered into the MOA with ICE, immigration officials promised New York State officials that each local law enforcement agency (LEA) in the state would be able to make its own determination as to whether or not it would participate in S-Comm. DCJS signed the MOA without any consultation with the public.

However, in recent weeks there has been much confusion across the country as to the ability of local jurisdictions to make decisions to either opt-in or opt-out of the MOA their state has entered into. Department of Homeland Security Secretary Janet Napolitano made a statement in early October that DHS didn’t “view this [Secure Communities] as an opt-in, opt-out program.” Yet, despite these assertions from DHS, DCJS confirmed in a letter sent to the New York Civil Liberties Union on October 27, 2010 that no LEA in New York State will be required to participate in S-Comm unless they “affirmatively agree” to do so. Nevertheless, confusion still abounds here in New York State as to the voluntariness of the program as DCJS officials publicly stated yesterday for the first time that S-Comm will not be made optional for LEAs in New York. To date, according to DCJS, there have not been any LEAs in New York that have been activated in Secure Communities.

III. Secure Communities and the Criminal Alien Program raise serious constitutional and safety concerns for all New Yorkers

A. S-Comm and CAP facilitate racial profiling and unconstitutional arrests, and have a disproportionate impact on communities of color

Law enforcement agents in communities where their jails participate in CAP or their LEAs participate in S-Comm may be incentivized to make arrests based on the race or ethnicity of the arrestee, or make pretextual arrests of suspected undocumented immigrants, knowing that an immigration status check will be performed that may lead to deportation of that arrestee. Secure Communities in particular can encourage racial profiling by giving rogue police officers a powerful new incentive to arrest people based on ethnicity or limited English proficiency. Under S-Comm, police officers will be able to arrest “foreign-looking” individuals for minor infractions or for no reason at all, purely in order to book them and transmit their fingerprints to immigration authorities.

A case study in Irving, Texas has confirmed such worries. After CAP was implemented in Irving’s jails and ICE agents were able to gain access to the jails via 24/7 video-conferencing, arrest data show a dramatic increase in the number of Latinos arrested for low level “Class-C” misdemeanor offenses, which is similar to a violation in New York State. In April 2007, 102 Latinos were arrested for Class-C misdemeanors, but in September 2007, 246 Latinos were arrested; a nearly 150 percent increase. This data suggests that law enforcement agents in Irving may have been making pretextual arrests of Latinos on low level offenses because they knew that once they reached the local jail, these suspected undocumented immigrants would be interviewed by ICE agents and possibly placed into deportation proceedings. There has been very little additional oversight of arrest patterns following implementation of CAP or Secure Communities.

Moreover, tearing down the wall between local law enforcement and immigration authorities will have a disparate impact on communities of color, who are disproportionately represented in and thus impacted by law enforcement practices in New York City. For example, under the NYPD’s practice of stopping and questioning hundreds of thousands of New Yorkers annually, blacks comprise approximately 50 percent of those stopped, while Latinos comprise approximately 30 percent of the stops. Nearly 90 percent of those stopped are completely innocent.

Additionally, people of color face the brunt of the NYPD’s arrest for minor marijuana possession, despite studies that demonstrate that whites use marijuana at higher rates than blacks and Latinos. Between 1997 and 2007, the NYPD arrested and jailed about 205,000 blacks and 59,000 whites for possessing small amounts of marijuana. Blacks accounted for about 52 percent of the arrests, though they represented only 26 percent of the city’s population over that time span. Whites represented only 15 percent of those arrested, despite comprising 35 percent of the population.

Should the wall between the NYPD and immigration enforcement be further broken down, black and Latino New Yorkers will likely be disproportionately impacted since they are already more likely than white New Yorkers to become entangled with the criminal justice system. Such entanglements may lead to immigration detention and deportation regardless of the validity of the underlying offense.

B. Deporting immigrants regardless of whether they are convicted of a crime violates basic principles of American justice

Under both Secure Communities and CAP, New Yorkers arrested for any offense may end up in federal immigration detention and deportation proceedings regardless of whether they are guilty of the underlying crime that led to the arrest. Under CAP, pre-trial detainees who have not been convicted of any crime may end up being detained by immigration authorities. Under Secure Communities, the information sent to immigration authorities are about arrestees, who have yet to face arraignment let alone a trial or conviction. Under both programs, innocent individuals who have engaged in no wrongdoing yet end up being falsely arrested may then find themselves in immigration detention and deportation.

Hundreds of thousands of New Yorkers are arrested each year, and tens of thousands of New Yorkers are eventually cleared of the criminal charges against them. Yet under the Secure Communities scheme, all persons arrested and whose fingerprints are sent to immigration authorities may (1) end up being held for at least 48 hours longer than the average arrest-to-arraignment time of 25 hours; (2) be sent to an immigration detention facility far from New York City; and (3) be deported because they came in contact with immigration authorities after being arrested, regardless of whether their underlying charge is eventually dismissed.

Secure Communities runs counter to the fundamental American principle that individuals are innocent until proven guilty. The deportation of individuals who may not be guilty of the crime that led to their arrest raises questions about the fairness of the underlying system and whether the punishment fits the crime; or in this case, no crime. Moreover, treating those charged with petty offenses, and those who may not be guilty of any offense, in the same manner as those convicted of serious crimes raises additional concerns about the overall operations of this scheme and its sweeping and overbroad approach.

C. Tearing down the wall between the NYPD and federal immigration enforcement makes our communities less safe

Even though ICE touts its enforcement programs that infiltrate the criminal justice system as mechanisms that will enhance community safety, such programs actually make our communities less safe.

Hundreds of thousands of undocumented immigrants live in New York City. Immigrants have flocked to New York City for centuries because of the city’s unique cultural and economic opportunities. Certainly, New York City owes its successes to the millions of immigrants that have come to its shores. Mayor Bloomberg has recognized the importance of immigrants to the city’s culture and economy: “No city on earth has been more rewarded by immigrant labor, more renewed by immigrant ideas, more revitalized by immigrant culture.” Mayor Bloomberg’s sentiments are shared by millions of New Yorkers who understand that immigrants fuel our economy and contribute to the rich diversity of this city – New York’s immigrant communities are vitally important for the quality of life of all New Yorkers.

Yet when local law enforcement agencies, like the NYPD and Department of Correction, open up their doors to federal immigration enforcement agents, immigrant communities become fearful that any kind of interaction with the police will put themselves, their family members, or friends at risk for detention and deportation. For example, a woman may be hesitant to report a domestic violence incident for fear that her spouse and the father of her children may end in deportation proceedings.

Thirty-six percent of the city’s population are immigrants and many of them will avoid contact with local law enforcement for fear of being exposed to immigration authorities. They will refrain from reporting to the police when they have been a victim of a crime, or that they have witnessed a crime. Moreover, for each undocumented immigrant who lives in New York City and fears contacting the police, there are many relatives and friends, United States citizens and non-citizens alike, who become fearful of the police because their loved ones may end up being entangled in an immigration enforcement action. If community members don’t trust law enforcement enough to alert them of crime occurring in their community, then law enforcement officers are not able to adequately police their communities and maintain safety.

Furthermore, the financial and human resources that end up being spent on immigration enforcement take away from more productive community safety initiatives. New York City’s taxpayers bear the expense of holding inmates at Rikers or central booking for 48 hours, or longer, while they wait to be picked up by immigration authorities. Moreover, inmates who have the option of posting bail will refrain from doing so, because once they post bail they will be sent to federal immigration detention. Again, New York City’s taxpayers bear the expense of this practice, since individuals who may be out are instead housed in the city’s facilities. According to the Department of Correction, it costs the city’s taxpayers at least $150 a day to house an inmate, and federal immigration authorities have made it clear that New York City will not be reimbursed for its expenses holding inmates under immigration detainers. NYPD and Department of Correction officers end up wasting many days holding immigrants in detention, and using the city’s precious resources.

Contrary to S-Comm’s stated goal of removing “the most dangerous criminal aliens,” ICE’s own records show that a very large percentage of the individuals identified and deported under this program have been non-criminals and minor offenders. This is built into S-Comm’s basic design: The program identifies people at the point of arrest, before they have been formally charged with or convicted of any crime. Even individuals who are wrongly arrested or who would normally be released without charges will get caught in S-Comm’s net.

As indicated above, records obtained through FOIA litigation reveal that from 2008 to 2010, more than a quarter of the individuals who were deported after being identified by S-Comm were classified by ICE as “non-criminals,” and 79 percent of those deported were either non-criminals or were picked up for lower level offenses.
Local law enforcement officers should focus their resources on enforcing local and state laws that keep our communities safe, and correction officers must focus their resources on keeping jail populations orderly and safe. Neither should be spending their time doing the job of the federal government in efforts to round up undocumented immigrants they encounter in the normal course of execution of their duties.

IV. Recommendations for the New York City Council

Taking the above into consideration, the New York City Council should:
1) Oppose implementation of the Secure Communities program in New York City. The City Council should insist that Governor David Paterson, and Governor-elect Andrew Cuomo, rescind the Memorandum of Agreement that authorizes implementation of Secure Communities in New York State. The City Council should publicly announce its opposition to the program, including but not limited to passing a resolution opposing New York City’s participation in the Secure Communities program.
2) Restrict ICE’s access to detainees housed at Rikers Island. The City Council should oppose ICE’s access to pre-conviction detainees housed at Rikers Island. Moreover, the City Council should oppose the sharing of any information by the Department of Correction about any of its inmates with ICE until and unless a formal written agreement is entered into that sets forth the duties and responsibilities of both ICE and Department of Correction agents in allowing access to inmates by ICE officials, and which protects the rights and confidentiality of inmates..
3) Oversee the impact of New York City’s increasing collaborations with immigration authorities. The City Council should use its oversight authority, and if needed subpoena powers, to aggressively investigate the impact of the increasing collaboration between New York City agencies and immigration authorities on New Yorkers. Moreover, the New York City Council should closely monitor whether such collaborations with federal immigration authorities have incentivized law enforcement to make arrests based on the race or ethnicity of the arrestee, or make pretextual arrests of suspected undocumented immigrants, knowing that an immigration status check will be performed that may lead to deportation of that arrestee.
4) Work to close the loopholes of Executive Order 41. The City Council should encourage Mayor Bloomberg to revisit Executive Order 41 and reissue a new directive that allows immigrant New Yorkers to access all city services, including the NYPD’s, without worrying that they may end up in federal detention and deportation proceedings.
5) Educate federal lawmakers on the impact of federal policies on New York City’s immigrant communities. The Secure Communities program and similar collaborations between federal immigration authorities and local law enforcement have increased significantly under a Democratic Congress and president. The New York City Council should educate its federal counterparts on these misguided policies and encourage an end to them.