[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

                              ----------                              


               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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