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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 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JOHN R. CARTER, Texas 

TOM FEENEY, Florida 

MARSHA BLACKBURN, Tennessee 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California

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 

MARSHA BLACKBURN, Tennessee 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

CHRIS CANNON, Utah 

STEVE KING, Iowa 

MELISSA A. HART, Pennsylvania 

SHEILA JACKSON LEE, Texas 

LINDA T. SA ́ NCHEZ, California 

ZOE LOFGREN, California 

HOWARD L. BERMAN, California 

JOHN CONYERS, JR., Michigan

GEORGE FISHMAN, Chief Counsel 

LORA RIES, Counsel 

ART ARTHUR, Full Committee Counsel 

CINDY BLACKSTON, Professional Staff 

NOLAN RAPPAPORT, Minority Counsel 

(III)

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

(1)

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 

2

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. 

3

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:]

4


EO124A.eps
5


EO124B.eps
6


EO124C.eps
7

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 singlelanguage immigrant community. The development of communitybased 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 

8

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. 

9

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 

10

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. 

11

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 

12

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, 

13

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 reVerDate Jan 17 2002 13:32 Apr 10, 2003 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\022703\85287.000 HJUD1 PsN: 85287
14

ceive 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. 

15

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 exVerDate Jan 17 2002 13:32 Apr 10, 2003 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\022703\85287.000 HJUD1 PsN: 85287
16

ample 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 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 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 

17

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 streetlevel 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 

18

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, 

19

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 

20

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 

21

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. 

22

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:]

23

PREPARED STATEMENT OF LESLYE E. ORLOFF


Orloff1.eps
24


Orloff2.eps
25


Orloff3.eps
26


Orloff4.eps
27


Orloff5.eps
28


Orloff6.eps
29


Orloff7.eps
30


Orloff8.eps
31


Orloff9.eps
32


Orloff10.eps
33


Orloff11.eps
34


Orloff12.eps
35


Orloff13.eps
36


Orloff14.eps
37


Orloff15.eps
38

*The footnotes referenced in this statement were not available at the time of this 

hearing.


Orloff16.eps
39

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? 

40

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. 

41

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 

42

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 

43

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. 

44

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? 

45

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 genderbased 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. 

46

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 

47

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 

48

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? 

49

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 porVerDate Jan 17 2002 13:32 Apr 10, 2003 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\022703\85287.000 HJUD1 PsN: 85287
50

tion—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. 

51

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 quesVerDate Jan 17 2002 13:32 Apr 10, 2003 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\022703\85287.000 HJUD1 PsN: 85287
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tions 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. 

53

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 husVerDate Jan 17 2002 13:32 Apr 10, 2003 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\022703\85287.000 HJUD1 PsN: 85287
54

band. 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. 

55

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 

56

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. 

57

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:]

58


HPD.eps
59

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. 

60

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:]

61


NYC1.eps
62


NYC2.eps
63

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. 

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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 

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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.] 

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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 

68

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 

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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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