Beware: Uncle Sam Is Watching

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Under Executive Order 41 police officers are not allowed to inquire about the immigration status of crime victims, witnesses, or other persons who approach them for assistance. Nor are they allowed to disclose information regarding immigration status except under specific circumstances. However, a 2003 report indicate that more than 300 New Yorkers were arrested after routine computer checks turned up immigration violations contained in the NCIC database.

Is the New York Police Department using data from the FBI to help arrest immigrants? This is one of the major issues explored in a recent NY City Council hearing.

In response to concerns expressed by immigrant advocates, the City Council’s Committee on Immigration, chaired by Council Member Kendall Stewart, held an oversight hearing about the impact of the National Crime Information Center Database (NCIC) on New York City's immigrant communities.
NCIC is a computerized index of criminal justice information maintained by the FBI and made available to federal, state, and local law enforcement. It is intended, for example, to inform the NYPD that someone they arrest for stealing a car is wanted in California for murder.

The database was created in 1967; however, in 2002 the FBI began adding non-criminal immigration information to it. While some of the individuals whose information was added have criminal backgrounds, many were entered into the database for civil issues such as minor immigration infractions. Meantime, Executive Order 41, which Mayor Bloomberg signed into law in 2003, guarantees the confidentiality of personal information, including immigration status, of persons who seek to access city services. Underthis law, police officers are not allowed to inquire about the immigration status of crime victims, witnesses, or other persons who approach them for assistance. Nor are they allowed to disclose information regarding immigration status except under specific circumstances.

However, a 2003 report indicate that more than 300 New Yorkers were arrested after routine computer checks turned up immigration violations contained in the NCIC database. Advocates believe the number is much higher today. Therefore, the Immigration Committee wanted to understand how and under what circumstances the NYPD makes use of information regarding immigration status from the NCIC database and, if so, how it justifies that in light of Executive Order 41.

First to testify was Thomas Doepfner, Deputy Commissioner of the NYPD's Legal Bureau. He explained that a routine part of an investigation or arrest is to initiate a background check, which automatically includes a query to NCIC, including the “immigration violators� portion of the database. If a person is listed as an immigration violator, the NYPD calls the US Immigration and Customs Enforcement (ICE) to find out if it wants the NYPD to issue a “detainer order,� which requires that the person be detained for 48 hours so ICE agents can take the person into custody.

As came out in the hearing, there are many immigrants who aren’t even aware they have something on their records that cause them to be listed as immigration violators. They could find themselves being taken into custody by immigration authorities and even deported. One of the many questions Chairman Stewart and the other council members brought up was, “Why would you report an arrest to ICE even though that person may later be found innocent?� He pointed out that a person may say the wrong thing and wind up getting arrested by an overzealous officer, or a person who has nothing to do with a crime may just be at the wrong place at the wrong time and get arrested, but later be cleared of all charges. Meanwhile, they’ve been reported to ICE and tagged.

Council Member Lewis Fidler questioned this procedure also, stating that it would make more sense to report people to ICE when they’re actually convicted of a crime, or, if they wanted to take a halfway measure, when they are indicted.

The only responses Stewart and Fidler could get from Deputy Commissioner Doepfner was that Executive Order 41 permits the NYPD to report immigrants who are suspected of a crime, and that this is the way it’s been done for a long time.

An even more troubling issue was unearthed during questioning by Council Member Hiram Monserrate. He brought to light the fact that a non-citizen who isn’t even being accused of a crime can merely be stopped at a routine traffic check point and his name will be run through NCIC. This includes people who are in the country legally, may have a Green Card, or even be a permanent resident. Any driver's license check of a non-citizen always results in a query to NCIC, and, if anything pops up, to ICE. From there, anything can happen.

At the hearing Udi Ofer, Staff Attorney at the New York Civil Liberties Union, spoke about the need to reintroduce the Access without Fear Bill to make sure that the NYPD abides by the spirit of Executive Order 41 because, “What we learned today is that the NYPD is interpreting the order in the broadest way possible.� For instance, the order does permit police officers to ask a New Yorker about their immigration status if the NYPD is “investigating illegal activity.� The order defines illegal activity as “unlawful activity other than mere status as an undocumented person.� But this can be the “unlawful� violation of jaywalking, and “investigating unlawful activity� can mean an activity not by the immigrant being questioned, but by anyone in their neighborhood!
A panel consisting of Avideh Moussavian from the New York ImmigrationCoalition, Monica Tarazi, Director of the New York Chapter of the American-Arab Anti-Discrimination Committee, and Subhash Kateel from Families for Freedom expressed their intense unease about the NYPD’s work increasingly intersecting with immigration authorities. Omar Jadwat, Staff Attorney at the American Civil Liberties Union Immigrants Rights Project, also testified as to their lawsuit challenging NCIC.

In conclusion, Chairman Stewart thanked the advocates for their testimony and said, “We need to come up with a strategy on how to handle this situation that’s like a runaway train. We must protect innocent folks who are being victimized.�

For more reports please call (212) 481-7745 for the newsstand edition of The Black Star News or click on “subscribe� on the homepage.

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