Chapter 2: Panel Summaries

Civil Rights Implications of Post-September 11 Law Enforcement Practices in New York

Even though the term itself may be relatively recent, racial and ethnic profiling by law enforcement has a long history in American race relations. Unlike many other aspects of institutionalized discrimination, however, the presence of racial and ethnic profiling can be objectively determined, and it is widely accepted as wrong. Still, the issue of racial and ethnic profiling by law enforcement agencies in the context of antiterrorism activities poses hard questions. The purpose of this panel was to evaluate the ostensibly countervailing considerations of the need to ensure adequate national security and the need to protect the civil rights of individuals particularly those of immigrants and minorities.

Panel participants addressed (1) the civil rights implications of racial profiling; (2) the extent to which increases in national security needs since 9/11 justify curtailing civil liberties, if at all; and (3) the extent to which, and with what consequences, New York's Muslim, Arab, and South Asian individuals, families, and communities have experienced racial and ethnic profiling by local and federal law enforcement authorities. Summaries of the panelists presentations follow.[1]

King Downing, National Coordinator, Campaign Against Racial Profiling, American Civil Liberties Union

Mr. Downing defined racial profiling as the use of race to support a discretionary judgment by a law enforcement officer to stop, frisk, detain, search, arrest, or use force on a person, except when race is part of the description of a specific suspect. The practice has a long history in police and minority relations. Nevertheless, prior to the events of September 11, there was a growing recognition, he said, that racial profiling was widespread, unconstitutional, and ineffective, as in the war on drugs. Since 9/11, however, this use of race has been combined with charges of minor violations as a pretext for police action and has been used increasingly by private and public security guards at malls and airports and by pilots acting in a law enforcement capacity.

There is another, less obvious, dimension to racial profiling acts of omission; that is, police officers not responding appropriately when violations of civil rights occur. For example, police often do not take hate crimes seriously when they are reported by the victims or third-party observers.

In post-9/11 security and antiterrorism concerns, the objects of profiling are primarily Muslims, Arabs, and South Asians rather than African Americans, Latinos, or other groups but the tactics are the same. They are both unconstitutional and ineffective, alienating the very communities whose assistance is most needed for national security. Moreover, in the current post-9/11 climate, African Americans and Latinos communities traditionally hit hard by profiling continue to suffer from intensified practices of racial profiling by law enforcement officials.

Profiling by both local and federal law enforcement authorities is increasing, according to Mr. Wahid. In New York City, it shows up as selective enforcement. Police are citing young black men for quality of life violations, such as trespassing in Harlem housing projects or, in one instance, for sitting on a milk crate in front of one's own store. In addition, immigrant shopkeepers, mainly of Middle Eastern origin, have been subjected to selective and sudden enforcement of regulations requiring them to have a vending license which may take up to 25 years to obtain for what had been a long condoned practice of setting up tables in front of their stores.

The profiling of Muslims, Arabs, and South Asians by federal agencies is to be challenged for its ineffectiveness in increasing security. The use of watch lists that is, lists of individual and organizational names designed to aid in the fight against terrorism as the basis for federal law enforcement actions is a new issue as is the federal government's administrative powers to force private companies to practice racial and ethnic profiling on the government s behalf.

Muslims, Arabs, and South Asians are in constant fear of delays or denial of their right to travel because of the use of no fly lists and profiling by customs agents. A young man from the West Bank was flying to the United States as a student accepted in an MBA program. Meeting several other Palestinians in a stopover in Italy, they sat together for the last leg of their flight. Apparently, because they were conversing in Arabic, they were put in detention immediately upon arrival, held for 24 hours while enduring long questioning, and finally cleared and released by the Federal Bureau of Investigation (FBI) only to be denied admission to the United States by INS (now in the DHS) and sent back to Italy. The practice of airline employees reporting anything suspicious to federal officials raises the issue of private company employees acting as agents of the government.

Financial targeting of Muslims, Arabs, and South Asians is another form of profiling in which the Office of Foreign Asset Control of the Department of Treasury has issued a list of several hundred names of persons who are blocked from financial transactions.[2] How one gets on the list, or challenges being on the list, and what safeguards exist against errors are unknown. One private company providing money transfer services seized $80 from a man whose name happens to be Muhammad Ali a client of Mr. Wahid because that very common name appeared on the blocked transaction list. Two private companies providing financial and banking services have dropped many of their customers and denied new accounts to other Muslim, Arab, and South Asian customers.

The encouragement by law enforcement agencies for the general public to provide anonymous tips relevant to antiterrorism security has led to thousands of useless tips based on profiling and many vindictive and retaliatory actions. Minor criminal infractions are being used as the reason to detain Muslims, Arabs, and South Asians, holding them as long as possible with the presumption of terrorist ties or of knowledge of such as the basis for determining bail conditions. The immigration court has been doing this for 18 months, and it is now becoming common practice in federal criminal court and state family courts.

Of the 100,000 licensed taxi drivers in New York City, 80 percent are immigrants. Sixty percent are South Asian Bangladeshi, Pakistani, and Asian Indians and 20 percent are Middle Eastern or West African. Seventy-five percent are Muslim or Sikh.

September 11 exacerbated drivers already difficult economic situations. Furthermore, they have been the targets of hate crimes. After 9/11, three drivers taxis, parked for the night at their residences, were set on fire. No one called the fire department. The owner of the taxi company subsequently sued one of those drivers for $3,000 for breach of contract.

There have been 10 incidents since 9/11 in which drivers have been pulled out of their cabs in broad daylight and punched and spat upon. No one came to assist them, including the police. In this climate, some wives are terrified and some parents kept their children at home for several weeks out of fear for their safety. Generally, people are not reporting these incidents. When complaints were filed with the NYPD, officials stated that their priority was antiterrorism.[3] The anti-immigrant, anti-Islamic bias of the now consolidated antiterrorism law enforcement agencies has trickled down to affect the behavior of ordinary people. When the police do not protect them, it encourages hate crimes.

The FBI has gone through the files of the Taxi and Limousine Commission for complaints and anonymous tips against South Asians, who have been called in and told to bring their immigration documentation and questioned with no attorney present. These anonymous tips often turn out to be retaliatory, such as by one owner who did not want a particular driver to leave his service.

Dennis D. Parker, Bureau Chief, Civil Rights Bureau, Office of Eliot Spitzer, Attorney General of the State of New York

Prior to 9/11, in 1999, the New York State Attorney General completed a study of the stop and frisk practices of the NYPD.[4] That study was done in the wake of rising concerns about the unfair targeting of African Americans and Latino Americans. While there are dramatic differences in the concerns of law enforcement after 9/11, the Attorney General's study identifies fundamental considerations and makes basic conclusions about the balance between the need to use particular law enforcement techniques in order to protect the public at large and the need to preserve the interests of individuals and particular communities.

The study found that African Americans and Latinos were stopped at a higher rate than their proportion in the community even after controlling for the crime rate in those populations and the neighborhoods in which they tend to reside. The study raised questions pertaining to factors such as training and supervision of law enforcement personnel, the efficacy of particular law enforcement techniques, and the need for balance in these interests. Effective policing and respect for individual rights are complementary. Civil rights without personal safety is a mirage; policing without respect for the rule of law is not policing at all.

The dramatically heightened need for increased security in the aftermath of 9/11 particularly the need to prevent future attacks has affected the balance between security and the civil rights and liberties of citizens. With regard to those matters within the Attorney General s authority, the office has taken steps to ensure the safety of New Yorkers without unduly burdening the rights of individuals. These steps included a careful examination of existing New York statutes to determine if that law was sufficient to respond to the specific threats of what had been previously unimagined acts of terrorism. As a result of that examination, the Office of the Attorney General supported and presented a legislative package that clarified the penal law to ease the apprehension and prosecution of persons charged with terrorist attacks and to ensure that the punishment is commensurate with the gravity of the offenses.[5] Moreover, state law enforcement officials have sought to cooperate with federal officials in the prevention of terrorist acts in a manner that does not interfere with their legal responsibilities and obligations under state law.

Of all the factors that would be useful in considering federal antiterrorism policies, most important is the realization that the effectiveness of a particular law enforcement policy is only a part of the calculus that must be undertaken there must also be the realization that there is the potential for costs for the implementation of the policy. These costs can include the targeting of individuals, not for their behavior but for who and what they are, a practice that has potential implications for their ability to enjoy the benefits of American citizenship, the very benefits which are most under attack by terrorists. In evaluating specific security measures, particularly those that would affect a discrete segment of American society, it is vital that there be a realistic assessment of the threat to the American people, some consideration of the consequences of a failure to take the step, an examination of alternative, less intrusive means of achieving goals, and a careful consideration of the effect on the rights of individuals.

A 10-minute segment of Mr. Rossier's documentary, Brothers and Others, was shown, depicting the effects on an Arab American family in which the father was arrested, presumably for visa violations, leaving the devastated wife and four children embarrassed and frightened, yet determined to speak up against this injustice. Other accounts of intimidating questioning and detention were documented, as well as statements presented by intellectual and religious spokespersons, who decried the moral hypocrisy of their treatment and the ineffectiveness of profiling as a tool in making the United States more secure.

Regardless of whether the viewer accepts the film as an objective report of the plight of Muslim and Arab communities in the New York area, Mr. Rossier said, at a minimum the film evidences the nature of the discussion, and extent of the discontent, within Muslim and Arab communities regarding the practices that immigration and law enforcement agencies have targeted against them.

Community relations with law enforcement agencies took on new dimensions in the wake of 9/11. Two areas in which there were dramatic changes are with respect to border crossings and the registration of nonimmigrants. After 9/11, the U.S. government initiated the National Security Entry/Exit Registration System (NSEERS). The first phase of this system was implemented on September 11, 2002. It required selected individuals to be fingerprinted, photographed, and interviewed under oath at U.S. ports of entry. On November 6, 2002, the NSEERS program was expanded to require noncitizens from certain countries already in the United States on nonimmigrant visas to register at local INS offices.[6] This second phase, referred to as Call-In Special Registration, required males over the age of 16 from a list of 25 countries to visit INS offices, be fingerprinted, photographed, and questioned by an inspection officer. With the exception of North Korea, all countries on the list are predominantly Muslim.

After special registration requirements were announced and the first phase of the program implemented, many Muslim families attempted to flee the United States, crossing the border into Canada to seek asylum status. DHS policies are alleged to have changed at different locations along the U.S.-Canadian border with respect to the arrest and detention of those attempting to cross the Canadian border or those sent back by the Canadian authorities.

The New York Advisory Committee selected Panel 2 speakers to examine the civil rights concerns of those subjected to special registration requirements and of those seeking asylum in Canada, as well as the interconnection between the U.S. Call-In Special Registration program and the reports of increased flight to Canada by noncitizen Muslims living in the United States. Specifically, the Committee sought information on how the implementation of the DHS policies and the requirements for the Call-In Special Registration may have affected the civil rights of immigrants.

In New York City, noncitizens required to undergo special registration initially reported to the 3rd floor of the Jacob Javits Federal Building. Noncitizens whose immigration status was unclear or who were out of status were referred to the 10th floor of this building, which housed DHS immigration investigations unit.

Vive, Inc., provides food, shelter, medical care, and legal advice to Canadian-bound asylum seekers. Vive makes appointments for refugee claimants at the Canadian border. When people come to Vive to seek asylum in Canada, Vive faxes the names and general information to Citizenship and Immigration Canada (CIC), which then makes an appointment for the person. At the time of the appointment at the border, the person undergoes a full background check and is fingerprinted and photographed. If the person is determined to be eligible, the person is allowed into Canada to pursue his or her asylum claim.

Ms. Woike reported that Vive served 6,174 people from March 2002 to April 2003 the most ever served over a comparable period in the 19-year history of the organization. Vive normally serves between 4,000 and 5,000 people annually. Ms. Woike described how the increase in the numbers of people Vive served from December 2002 until April 2003 was directly linked to special registration, supporting her conclusion with office statistics and what the people served told Vive staff. After the government announced the countries in Group 3 whose nationals had to report for special registration in mid-December 2002 (Pakistan and Saudi Arabia),[7] the number of asylum seekers from Pakistan increased to 156 for that month, compared with 11 for the previous month. Moreover, the number of people needing Vive's services increased in ensuing months. In February 2003, for example, Vive served 959 persons. Of this number, 513 were Pakistani nationals.

CIC was overwhelmed by the increased number of asylum seekers. It usually takes between four and seven days to obtain an appointment with CIC to apply for asylum. With the overflow of people, it took an average of five to seven weeks to get an appointment. At one point in February and early March 2003, there were more than 800 people waiting for appointments with CIC at the Buffalo border. With Vive full to capacity, the overflow stayed at local hotels and some went back to New York City to wait for their appointments. Others tried crossing the border at Plattsburg, New York.

The Pakistani population served by Vive ranged from people who had been in the United States for several years to others who arrived more recently. They were single men and many family groups with woman and children, both U.S.-born and undocumented children. Sixty-four U.S.-born children of Pakistani parents passed through Vive in February 2003. Once people realized that it would take between five and seven weeks to get an appointment with CIC which would have prevented many of them from leaving the United States before the final Call-In Special Registration deadline for Pakistani nationals the number of Pakistanis dropped off in March to 156 and again to 45 in April.

With the federal government's announcement of Group 4 for special registration (Bangladesh, Egypt, Indonesia, Jordan, and Kuwait),[8] Vive received an increased number of nationals from those countries. In March 2003, Vive served 52 Egyptians and, in April 2003, 127 Bangladeshis and 12 Indonesians.

At the end of January 2003, CIC began doing direct backs ; that is, sending people who arrived at the border without an appointment back to the United States. Anyone who was directed back to the United States and out of legal immigration status was placed in removal proceedings. Some were detained by INS. At the Buffalo border, this seldom happened because most of the people came through Vive first, where they could stay while awaiting their appointment. As for outbound checks people who were checked by U.S. immigration leaving the United States going into Canada Ms. Woike testified that she was aware of two incidents. In those incidents the people were not detained.

Lastly, Ms. Woike addressed the Safe Third Country Agreement between the United States and Canada, part of the Smart Border 30-point plan.[9] Signed on December 5, 2002, it has not been implemented yet.[10] Under the agreement, those who arrived first in the United States must apply in the United States for asylum; they will not be able to make a refugee claim in Canada except under limited exceptions. Ms. Woike testified to the expected rush at the border before the agreement is implemented, and she predicts it will be worse than during special registration. After the Safe Third Country Agreement is implemented, there will be concerns about border security. Since the agreement only prevents people arriving at the Canadian border from the United States from making asylum claims in Canada, people who make it inland to the interior of Canada can still bring asylum claims. This may encourage and escalate smuggling into Canada and raise a host of security concerns.[11]

Initially, Vermont Refugee Assistance worked primarily with Canadian-bound asylum seekers. Since 1993, it broadened its services to include immigrant detainees in county jails in Vermont and upstate New York. It does not have a shelter, but rather houses asylum seekers in the community. It focuses on those seeking to file asylum at two ports of entry: the Champlain-Lacole, New York-Quebec border and the Vermont-Quebec border.

Mr. Giantonio testified that special registration was highly discriminatory, wrong, unjust, and illegal. He described the surge in numbers of people attempting to file for political asylum at the Champlain border in Quebec as a response to special registration and changing U.S. and Canadian policies. Because of the evolving Canadian immigration policy and the need to manage the flow of asylum seekers from the United States, Quebec Immigration and CIC consolidated their resources at the Champlain-Lacole port of entry, virtually closing the Vermont border port of entry to asylum applicants. Normally, asylum applicants would arrive at Champlain, go right by the DHS, and present themselves to Canadian officials. They would have their initial interview and be paroled into Canada. It had been a longstanding policy of CIC for officials at a port of entry who wanted to return someone with an appointment to the United States for them to first obtain assurances from INS that the individual would be able to make it back to Canada for their appointment. In other words, Canada immigration did not want to return people to the United States if they would be placed in detention.

However, as the number of people seeking asylum increased, on January 27, 2003, CIC changed its policy if CIC wanted to send someone with an appointment back to the United States, it did not have to seek assurance from INS that the individual would not be placed in detention. The total number of asylum seekers returned from Champlain to the United States was 432, of whom 133 were to be detained if they did not post a bond. As of March 5, 2003, 63 people were detained.

Under Canadian immigration law, people can still make a claim for asylum in Canada even when their case had been denied in the United States. Those individuals who were sent back by Canada to the United States and subsequently detained and deported because they had prior orders of removal in the United States were effectively denied the protection of and access to the Canadian system. With the crisis at the border, asylum seekers ended up straddling two immigration systems. They started the asylum process in Canada and if they were sent back to the United States and detained, they had to resolve their immigration removal proceedings in the United States. Mr. Giantonio stressed that the process to which Canadian-bound asylum seekers were subjected was inefficient and contended that most U.S. officials working at the border agree.

At the height of the crisis, the INS and the Bureau of Customs and Border Protection (BCBP) began outbound checks. Some asylum seekers en route to the Champlain border were caught in the outbound checks. Because of Vermont Refugee Assistance's great working relationship with local law enforcement authorities, the DHS port director agreed if someone had an appointment with Canadian immigration, that person would be allowed to continue to Canada even if he or she was out of status. Mr. Giantonio testified that it was difficult for detainees to access attorneys. Bonds were typically set by INS officials at $1,500 initially, but then jumped to $5,000 across the board.[12]

The Coney Island Avenue Project was formed in the immediate aftermath of 9/11 to deal with the effect of post-9/11 government policies directed at the Pakistani community. Mr. Khan detailed the human toll that such policies left in their wake in the Pakistani community. He framed the human toll as taking place in two phases. First, in the immediate aftermath of 9/11, law enforcement authorities made raids on the Pakistani community, going door to door and making arrests of scores of Pakistani male immigrants. He described the case of one Pakistani man who was held as a material witness and died in prison after languishing there for six weeks. The Coney Island Avenue Project demanded an investigation into his death, but never received any information that such an investigation had been carried out. Another Pakistani man was arrested right after 9/11 for overstaying his visa. He was kept with 25 other Pakistanis on the 9th floor at the Metropolitan Detention Center, where they were reportedly beaten every day.[13]

After this first phase of arrests, there was the second phase special registration. As a result of the fear of special registration, almost 20,000 Pakistanis have migrated to Canada, according to Mr. Khan.

Mr. Khan spoke of families transporting infant children across the border in chilling winter weather. He detailed the plight of another Pakistani family that was directed back to the United States by CIC. The husband was arrested and detained by U.S. authorities. Mr. Khan described how bonds jump from $1,500 to $15,000[14] a move he termed highway robbery.

Of those who opted to report to special registration, many were kept at the registration site for 30 hours without any food or drink. If they were taken to investigations, some were ordered to take off their clothes, shackled, and ultimately sent to prison. Others were given notices to appear and placed in removal proceedings.

Winston Barrus, Interim Deputy Director, Buffalo Field Office, Bureau of Customs and Border Protection (BCBP), U.S. Department of Homeland Security

Mr. Barrus gave an overview of the role and responsibilities of the Bureau of Customs and Border Protection within the Department of Homeland Security. BCBP is now the agency with jurisdiction and authority to enforce the inspection provisions of the Immigration and Nationality Act.[15] The Buffalo Field Office of BCBP has jurisdiction over the state of New York outside metropolitan New York City. This includes all New York-Canada ports of entry from the Peace Bridge in Buffalo to the inspection station at Rouses Point.

Mr. Barrus explained the inspection requirements at the port of entry for persons seeking entry into the United States. To be admissible as a nonimmigrant, people are generally required to be in possession of a valid passport and visa and establish that they have a residence abroad to which they intend to return. Each year, BCBP conducts approximately 500 million inspections of applicants for admission into the United States. Most applicants are nonimmigrants who depart after their authorized stay has expired. Others overstay their authorized stay, some attempt to enter with fraudulent documents, and some enter without being inspected. If immigration authorities encounter these individuals, they are subject to removal proceedings.

Recently, large numbers of Pakistani nationals have been appearing at Canadian land border ports of entry seeking to apply for Canadian refugee status. The increase in Pakistani nationals seeking to apply for Canadian refugee status may have been precipitated by NSEERS. Nonimmigrants seeking to apply for Canadian refugee status should do so when they have a lawful U.S. status. Nonimmigrants who are refused admission into Canada and have a lawful U.S. status are allowed to proceed back into the United States with no further action taken. Nonimmigrants who are refused admission into Canada and have an unlawful U.S. status are processed at the port of entry as removable aliens. With its authority to make custody and bond determinations, BCBP makes these determinations on a case-by-case basis.

Following 9/11, the federal government established outbound inspections at certain ports of entry to Canada, including Peace Bridge and Champlain. If inspectors encounter someone during an outbound check who is not a U.S. citizen and does not appear to have proper travel documents, that person is referred for further inspection. The fact that some of the nonimmigrants who BCBP encounters are seeking to depart the United States or may be intending to apply for Canadian refugee status does not affect BCBP's requirement to process them for removal under the immigration laws if they are illegally in the country.

Since 9/11, BCBP has received significant increases in staffing and technology at ports of entry in an effort to prevent terrorists or weapons of mass destruction from entering the country. BCBP's duties are now performed with increased vigilance and attention to detail regarding all applicants for admission into the United States. On April 29, 2003, it was announced that DHS will create a new entry/exit system backed by 21st century technology.[16] The U.S. Visitor and Immigrant Status system (U.S. Visit) is designed to make entering the United States easier for legitimate tourists, students, and business travelers, while making it more difficult to enter the United States illegally, through the implementation of biometrically authenticated documents such as photographs, fingerprints, or iris scans.

Young Mohammad Sarfaraz Hussain was required to comply with special registration with Group 3 nationals. On the day of the SAC forum, he was in school. However, he submitted a handwritten letter addressed to the New York Advisory Committee (text set out below), which was read into the record.

Karin Anderson, Policy and Training Associate, New York Immigration Coalition

The New York Immigration Coalition is an umbrella policy and advocacy organization for more than 150 member groups in New York that work with immigrants and refugees. It coordinated the Special Registration Legal Assistance Project, a collaborative effort by community organizations and legal services groups. The project has assisted more than 800 individuals through legal clinics offering advice for those subject to special registration requirements.

Ms. Anderson described how the special registration program suffered from fundamental flaws in its design, the most serious of which was its use of nationality-based profiling to determine who must register, ignoring data that show broad-based profiling methods that target persons based on characteristics such as race or nationality are ineffective law enforcement tools. According to the Bureau of Citizenship and Immigration Services (BCIS), the number of people charged with terrorism-related crimes as a result of special registration is zero. Secondly, the design of the program did not give any consideration to the problems inherent in trying to implement such a large-scale enforcement program, especially in light of limited agency resources.

There was insufficient staffing and other resources needed to timely process the large number of registrants. Immigration adjudication officers had to be pulled away from their normal duties and diverted to help deal with special registration. As a consequence, the processing of immigration applications suffered tremendously, adding to an already formidable backlog of cases.

Ms. Anderson highlighted the implementation problems at the special registration site in New York City:

Cyrus Mehta, Chair, Committee on Immigration and Nationality Law of the Association of the Bar of the City of New York; First Vice Chair, Board of Trustees of the American Immigration Law Foundation

Mr. Mehta testified to the comparisons between government initiatives targeting Japanese Americans during World War II because of their ancestry, without regard to individualized guilt or suspicion and present-day government initiatives targeting noncitizens from predominantly Muslim countries based on their nationality and gender without regard to individualized guilt or suspicion. No reports have been received of terrorists being prosecuted criminally as a result of the mass registration of Muslims.

Because they responded to the call to register, many are in deportation proceedings. Most affected are male teenagers who may have come to the United States as young children with their parents, totally unable to control their ability to remain in the United States legally. Registrants were routinely denied the right to counsel if they were sent to investigations. In New York City, this occurred regularly, even after the district director said that attorneys must be allowed access. Qualified translators were also not permitted to accompany registrants to investigations.

Mr. Mehta also focused on the ongoing requirements of special registration. Registration at the airport or through the call-in program is not a one-time event. This person will constantly be branded as a registered alien, as he will need to report back to INS on a periodic basis and exit the country only through certain designated ports of entry. Any failure to comply with all the requirements of this program (which also includes a duty to report a change of address) can lead to deportation, criminal penalties, and future inadmissibility.[18]

Mr. Mehta noted that INS used unapproved paper forms that failed to comply with the public protection provisions of Section 3512 of the Paper Work Reduction Act to register people.[19] Form I-877, for example, stipulates that the statement must be given freely and voluntarily. However, the final registration rule makes clear that any willful failure or refusal to comply with the required information collection would constitute a failure to maintain nonimmigrant status and a deportable offense.

Mr. Mehta presented the findings of a survey entitled Inconsistency, Confusion and Chaos: Experiences with Call-In Special Registration conducted by the American Immigration Law Foundation on registrants experiences at Call-In Special Registration. The findings, based on 266 responses, were grouped into the following categories that illustrate the inconsistency and lack of clarity of the program s implementation:

Mr. Mohammedi's testimony focused on the shortcomings of special registration under the National Security Entry/Exit Registration System. He contended that the program has been administered without a clear vision or consistent policy and that it is an ad hoc, misleading solution to a real problem. Special registration will not enhance national security because it targets innocent people based on their race, national origin, and religion, rather than terrorists.

The addition and subsequent removal of Armenia from the list of countries raises even more questions about the criteria and process by which countries are included in the list. People who come forward to identify themselves under this program are seeking to obey the law; a terrorist would not report to INS. The hardworking families coming forward to register do not have criminal records; they pay taxes and contribute to the development and wealth of this country. Yet, many of those who complied with the program by registering have been detained, deported, or are awaiting deportation due to immigration technicalities resulting from INS bureaucracies and backlogs in issuing green cards.

Registrants have been denied attorney representation, interrogated with their hands cuffed, and subjected to verbal abuse. Those taken in custody were placed in handcuffs and leg shackles and held in cold cells without adequate clothing or blankets. Some were forced to sleep standing up or on concrete floors because of overcrowding.

Moreover, many who complied with special registration may have well-founded fears of persecution, but may not have filed timely asylum applications. Under Article 3 of the International Convention Against Torture, the U.S. government has an obligation not to return refugees to persecution.[20]

Mr. Mohammedi reported incidents of people who were in status and complied with special registration requirements, but who suffered nonetheless from inconsistent procedures at the INS. Registrants with international travel plans, for example, were told they must provide notice of departure to the INS agent before leaving the United States. In some instances, husbands of families who had to travel outside the United States and who attempted to report to INS found no immigration officer available. These men were told that they could depart and that they just needed to explain their situation upon their return; that is, that there was no immigration officer available to fill out the report prior to departure. However, when returning, these men were barred from reentering the United States. These people had their careers, families, and future here, but are inadmissible now because INS failed to implement the registration program effectively. Mr. Mohammedi played tapes of two families describing their plight. The families now face deportation as a result of complying with special registration.

Panel 3: Legal Issues After 9/11: Due Process, Checks and Balances, and Access to Public Records

The third panel picked up on the topics of racial profiling and special registration and border crossing issues, and presented them in the context of the adequacy of protections for civil rights and civil liberties. Panelists addressed concerns about the sufficiency of due process in current law enforcement practices, particularly in the administration of immigration law as it affects Muslims, Arabs, and South Asians. In addition, the third panel included a presentation of new privacy and records access issues that have arisen since September 11, which bear directly on the ability to ensure independent oversight of civil rights concerns in law enforcement activities.

Ms. Thornton contended that many of the measures taken by government since September 11 have violated traditional notions of liberty with no clear connection to increased safety. Checks and balances designed into the American constitutional system have been eviscerated by the Departments of Justice and the Office (now Department) of Homeland Security, so that there are now few effective checks on arbitrary, irrational, destructive, or even malicious behavior by the tens of thousands of people who enforce immigration law.

Her remarks focused on the erosion of due process represented by denial of individualized hearings, expanded authority to detain without charge, barriers to release on bond, and prolonged detention after final deportation orders have been issued. She also addressed discriminatory policies in the interview process, selective enforcement of immigration law, and special registration requirements that have been targeted at particular communities of Muslim and Middle Eastern foreign nationals. As a result, people in these minority communities, citizens and noncitizens alike, feel under siege.

According to Ms. Thornton, one cannot say whether any benefits to national security have resulted from these increased security shortcuts, or whether more traditional standards of due process and fair procedure would have been any less effective than these recently adopted practices. It is clear, however, that an opportunity has been lost to determine whether national security could have been enhanced through increased cooperation from the affected communities, simply by treating those communities equally and more fairly.

David Harris, Balk Professor of Law and Values, University of Toledo College of Law; Soros Senior Justice Fellow, Open Society Institute of New York

Mr. Harris described his findings that racial profiling is inefficient and diverts time and attention from much more effective methods of police work. Based on statistics collected by state agencies, he found that the hit rate, which is the rate at which police stops of individuals result in arrests or finding contraband, is actually lower for the minority groups being profiled as more likely to commit crimes than it is for whites, who are not being profiled.

Mr. Harris stated his belief that his conclusions with respect to racial and ethnic profiling generally were equally true of the focus on Muslims and Middle Easterners in the aftermath of September 11. Good police work is based on observation of suspicious behavior, not appearance. Profiles of personal characteristics such as race, faith, or national origin actually reduce, not enhance, the ability of law enforcement to catch wrongdoers. Those personal characteristics are what Mr. Harris calls distracters. They divert attention from the very behaviors that are the basis of good police work.

In addition, profiling for race, faith, or national origin has the effect of enlarging the suspect pool. As a result, profiling forces departments to spend their resources unproductively, addressing cases that have nothing to them a pattern that has been evident since September 11.

Mr. Harris third point is that not only does the best intelligence come from talking to people, but doing so has never been more critical. More information and informants are needed now. Useful information on terrorist activity involving Middle Easterners must come from Middle Eastern communities. But profiling those same people drives willing informants away by sowing fear and distrust.

Mr. Eisenberg addressed the reduction in accountability for official misbehavior brought about by changes since September 11, focusing on changes to the consent decree in Handschu v. Special Services Division.[21] He explained that the context of the Handschu decree was the historic misdirection of the NYPD in surveillance of individuals and political groups, including such venerable organizations as the NAACP and the ACLU. Moreover, the files created about the members of these organizations and others under investigation for their political activities were then used in extralegal ways, by disseminating information to discredit individuals with employers, licensing agencies, and bar admission committees. In a pattern too familiar in other parts of the country, the NYPD expanded beyond collection of information and used infiltrators as agents provocateurs to disrupt the activities of political organizations and to facilitate the arrests of organizational activists.

Shortly after Handschu was filed as a class action in 1971, the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities issued its final report identifying abuses committed by federal agencies . . . comparable to those described in the Handschu complaint . . . [which] demonstrated that the history of such abuse was too systemic and widespread to be regarded merely as episodic and as the unintentional consequence of occasional over zealousness. [22]

Handschu resulted in a settlement and a consent decree in 1985. The decree prohibited the NYPD from investigating political activities unless specific information had been received by the police department that a person or group engaged in political activity is engaged in, about to engage in, or has threatened to engage in conduct that constitutes a crime. The decree also imposed procedural limitations as a check against abuse and as a vehicle for maintaining a paper trail in the event that violations of the guidelines were to arise.

In September 2002, New York City asked to modify the decree and to eliminate both the substantive limitations and the procedural safeguards of the Handschu decree, although the city made no showing that the decree had hindered or would interfere with appropriate investigations. Nevertheless, Senior U.S. District Judge Charles S. Haight agreed to lower the threshold for investigation of political organizations and removed the specific procedural requirements of the earlier decree so that investigations could be ordered at lower ranks in the department and without any outside reviewing authority or paper trail.[23]

Within a few days of its adoption, the NYPD disobeyed the terms of the modified decree. On February 15, 2003, the NYPD prevented many from getting to the site of a large antiwar demonstration, leading to some 350 arrests, mostly for disorderly conduct. While lawyers waited outside police headquarters unable to enter the building to meet with their clients, the police interrogated the arrestees about their political activities based on a Demonstration Debriefing Form, which asked about the organizational affiliation of those arrested, the schools that they attended, and any prior demonstration history.

These interrogations suggest a return to the familiar pattern of information gathering in which those who engage in political protest and dissent are to be made the subject of political dossiers, and in which accountability for their actions is minimal.[24]

Robert J. Freeman, Executive Director, New York Department of State Committee on Open Government

Mr. Freeman explained that the basic principle underlying the New York Freedom of Information and Open Meetings Law is that access to government information is required unless disclosure would do identifiable harm.[25] In contrast, it was suggested that many of the measures taken since September 11 reflect an overreaction. For example, under the Homeland Security Act, critical infrastructure information is protected from disclosure.[26] Much critical infrastructure information, however, is included in records that have long been public, such as maps.

Moreover, under heightened security policies, if government obtains information from private businesses that relates to critical infrastructure or trade secrets, that information must be kept confidential forever there is no consideration of the harm that could arise from releasing the information. Under New York law, information submitted by a commercial enterprise that would harm its competitive position may be withheld. The impact of disclosure often changes over time. New York law imposes no need for permanent secrecy. Revelation of trade secrets that could lead to commercial injury at one point in time may years later be outdated. In that instance, the harmful effects of disclosure would have disappeared.

Much of what has been done by regulation and by statute since September 11, 2001, has been the result of knee jerk reactions. There has been little in-depth consideration of the impact of the changes. Mr. Freeman stated the position of his office that there is no need for an extensive revision of the state records access statute in order to protect against terrorism. Dealing effectively with terrorism is unquestionably critical, and the existing exceptions provide government with the ability to protect against inappropriate or injurious disclosures in the aftermath of 9/11.

He noted that although state law might appear insufficient to protect public safety, judicial interpretations have provided the necessary and appropriate safeguards. For example, in Section 87(2)(f) of the Freedom of Information Law,[27] an exception from disclosure applies when disclosure would endanger life or safety. He indicated that the courts have interpreted this standard in a manner that ensures public safety, effectively substituting a standard that records may be withheld when disclosure could endanger public safety. He described similar commonsense applications by the state's highest court with respect to access to law enforcement records, including internal protocols that would reveal investigative techniques.

Mr. Freeman also noted that the state records access law has been amended to keep up with the times. For example, the statute was recently amended to ensure that state and local governments have a means to deny access to records that would threaten the security of electronic information systems. His conclusion regarding the adequacy of current state laws in the post-9/11 environment is that the existing exceptions to rights of access clearly provide government agencies the authority to withhold critical infrastructure information and similar materials involving private entities when disclosure would be damaging to the competitive position of those entities or inimical to the public interest in safety and security.[28]

Professor Wishnie stated that the relation between federal, state, and local law enforcement agencies has been radically and, in his view, illegally changed with respect to enforcement of immigration violations.

Before September 11, 2001, the U.S. Department of Justice interpreted federal law to prohibit state and local police from involvement in civil immigration arrests.[29] The department interpreted the relevant statutes to permit state and local criminal immigration arrests if, and only if, authorized to do so by state and local law.

In 1996, Congress created a procedure so that states could agree to participate in criminal immigration arrests as a prerequisite to participating in immigration enforcement.[30] Those procedures required training and supervision by the federal Immigration and Naturalization Service (now the Bureau of Customs and Border Protection), and as recently as one year before the tragedies of 9/11, New York State Attorney General Eliot Spitzer said that under state law, state and local police could not make civil immigration arrests. After 9/11, however, the Justice Department rescinded the opinion letters it had issued since the 1970s and decided there was inherent authority for state and local police to make immigration violation arrests.

Additionally, a 1930 federal statute limits the information that can go into the National Criminal Information Center (NCIC) database. Until Attorney General Ashcroft recently modified NCIC database procedures, immigration data was not entered into the national NCIC database. Accordingly, when police stopped an individual and called for information from the database, immigration information would not have been included. Now, however, the Justice Department downloads civil immigration information into the NCIC database.[31] At the time any local officer accesses the database for information about a specific person, he or she will get this information, and New York City Police Commissioner Kelly has stated that the NYPD will make arrests for immigration violations in New York City. The result has been illegal arrests; that is, arrests which are unlawful under the federal NCIC statute.[32]

[1] Panelists presentations were summarized from a transcript of the New York Advisory Committee's May 21, 2003, community forum in New York City. The transcript is on file with the Eastern Regional Office of the U.S. Commission on Civil Rights.

[2] The 1990 Antiterrorism Act prohibits the provision of material support to a foreign terrorist organization. 18 U.S.C. 2339b (2004). The Department of the Treasury may require U.S. financial institutions possessing or controlling assets of designated foreign terrorist organizations to block all financial transactions involving these assets. 18 U.S.C. 1956, 1957 (2004). Executive Order 13,224, 66 Fed. Reg. 49,079 (2001) states that the Executive will freeze any assets which are used to assist in, sponsor, or provide financial, material, or technological support for, or financial or other services to or in support of, such acts of terrorism, or those persons listed in the Annex to the order, or determined to be subject to the order. The Treasury Department's Office of Foreign Assets Control coordinates efforts to freeze the assets of parties designated as terrorists. Once the terrorist designation has occurred, the group's or individual's name is published in the Federal Register. Upon designation, their assets are frozen immediately without prior notice of process.

[3] In a letter dated February 3, 2004, Stephen L. Hammerman, deputy commissioner of legal matters, New York City Police Department, wrote in response to these statements: The Police Department protests the conclusory and unverified assertions so that these allegations may be investigated. The NYPD's mission is to investigate and prevent both conventional crime and terrorist acts, as evidenced by the fact that New York City is the safest large city in America.

[4] In a letter dated February 3, 2004, deputy commissioner of legal matters, New York City Police Department, wrote in response to this statement: The NYPD continues to disagree with the Attorney General's conclusions and finds the study fatally flawed in failing to account for the factors which are relevant and necessary in assessing the Department's stop and frisk activity.

[5] A bill reflecting key points presented in this legislative package passed in the New York State Senate on February 11, 2003. As of February 25, 2004, however, this bill had not been introduced into the New York State Assembly. State legislators in support of the antiterrorism package argue its necessity to better prevent terrorist acts in the future. Opponents of the legislation are concerned about potential abuses on the civil liberties of domestic criminal defendants and argue that such legislation is already in place at the federal level. See Joel Stashenko, Anti-Terrorism Package Has Not Been Passed, Despite Shock of Sept. 11, Associated Press State and Local News Wire, Sept. 6, 2003.

[6] Four country listings were identified in separate Federal Register publications. The final Call-In Special Registration period ended on April 25, 2003. Registration through NSEERS continues at U.S. ports of entry.

[7] Registration and Monitoring of Certain Non-immigrants, 67 Fed. Reg. 77,642 44 (2003); 68 Fed. Reg. 8,046 47 (2003).

[8] Registration and Monitoring of Certain Non-immigrants, 68 Fed. Reg. 2,363 66 (2003); 68 Fed. Reg. 8,046 47 (2003).

[9] On December 3, 2001, Attorney General John Ashcroft signed an accord with the minister of citizenship and immigration of Canada and the solicitor general of Canada agreeing to begin discussions on a safe third country exception to the right to apply for asylum. The Agreement Between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries was signed in 2002, but does not go into effect until September of 2004. For text, see Citizen and Immigration Canada, Canada and U.S. Negotiators Agree to Final Draft Text of Safe Third Country Agreement, <http://www.cic.gc.ca/english/policy/safe-third.html> (last accessed Feb. 18, 2004). The agreement provides, with four exceptions, that asylum seekers who arrive at a port of entry along the Canada-U.S. land border will be obliged to seek protection in the first country of arrival. In other words, asylum seekers on the U.S. side of the border attempting entry into Canada will be deflected back to the United States and vice versa.

[10] As of February 10, 2004, the agreement remained to be implemented.

[11] In a letter dated January 20, 2004, Jason P. Ahern, assistant commissioner, Office of Field Operations, U.S. Customs and Border Protection, Department of Homeland Security, wrote that this written testimony addresses actions taken by border agencies, both Canadian and U.S., in response to the surge in asylum applicants traveling to Canada, many of whom were out of legal immigration status in the United States. Federal authorities have a responsibility to enforce the laws of the United States and to take appropriate action when they encounter violators, and Federal agencies must often adjust their enforcement procedures and tactics in response to emergencies and trends as they occur. The Immigration and Naturalization Service (INS) and later CBP worked closely with Citizenship and Immigration Canada (CIC) and with the advocacy organizations to manage this influx as efficiently as possible in accordance with existing laws, regulations and policies. What is not reflected in the testimony is how INS worked with the Salvation Army in Plattsburg and Vermont Refugee Assistance (VRA) to arrange pick up service for women and children, assisted in obtaining food for applicants who had been waiting for many hours while being processed in Canada, set up special processing areas in the port of entry to deal with these cases as quickly as possible, and avoided the use of hold rooms whenever possible.

[12] In a letter dated January 20, 2004, Jason P. Ahern, assistant commissioner, Office of Field Operations, U.S. Customs and Border Protection, Department of Homeland Security, wrote in response to this statement: We believe this is an inaccurate characterization. Only in very rare cases were bonds of over $5,000 imposed and in many cases, the individuals were released without bond. The INS took into consideration both mitigating and negative factors in determining whether to impose a bond and at what amount, including equity in the United States, whether there were children involved, the seriousness of the immigration violation, the length of overstay, whether the alien had a criminal record, and other such circumstances. We also note that there were indications that both CIC and INS experienced substantial no-show rates for hearings.

[13] In a letter dated February 4, 2004, Michael W. Garrett, senior deputy assistant director, Federal Bureau of Prisons, U.S. Department of Justice, wrote in response to these allegations: The Department of Justice does not condone the abuse of anyone being held in federal custody. Additionally, the Department, through its Civil Rights Division, aggressively prosecutes state and federal officers who violate the rights of those in custody. Since September 11, 2001, the Department, working with the Federal Bureau of Investigation and United States Attorneys offices, has investigated allegations regarding 19 Arab, South Asian, and Muslim federal detainees, which raise complaints that the detainees were physically assaulted by law enforcement officers while in custody. All 19 allegations presented insufficient evidence to support a federal criminal prosecution for the willful violation of any detainee's constitutionally protected rights. With one exception, all of the 19 matters investigated as possible federal criminal violations involved no serious injury to the victim. In some cases, investigators were unable to corroborate that there had been any injury at all.

[14] See footnote 12, chapter 2.

[15] The Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002), transferred the functions of the INS to the DHS. Under the act, the INS was to be abolished and its functions transferred from the Department of Justice to the DHS, effective March 1, 2003. According to the Reorganization Plan Modification for the Department of Homeland Security, the U.S. Customs Service has been renamed to the Bureau of Customs and Border Protection. H.R. Doc. No. 108-32 at 4 (2003).

[16] The integrated automated entry/exit system will verify the identities of foreign nationals and authenticate their travel documents through the comparison of biometric identifiers. The Department of Homeland Security will take a digital photograph and two fingerprints from each nonimmigrant alien who presents a visa at designated air or sea ports of entry. The inspecting officer will be able to compare the biometrics associated with the person who applied for the visa at the consular office abroad against the biometrics of the person that is present at the port of entry. Nonimmigrant visa holders, except those subject to the National Security Entry/Exit Registration System (NSEERS), may continue to depart through any port, even though biometrics are not currently being collected on exit. Individuals who remain subject to NSEERS must still depart through specific ports and undergo special departure procedures. 8 U.S.C. 1187, 1365a, and note, 1379, 1731 31 (2004); Implementation of the United States Visitor and Immigrant Status Indicator Technology System (US-VISIT); Biometric Requirements, 69 Fed. Reg. 468 (2004).

[17] The Department of Justice says that publication in the Federal Register unequivocally constitutes sufficient notice for due process purposes. See 44 U.S.C. 1507 (2003). The courts have held that publication in the Federal Register constitutes adequate due notice. See Lyng v. Payne, 476 U.S. 926, 942 43 (1986).

[18] The Attorney General has authority to establish conditions of admission under 8 U.S.C. 1184 (2004), and also promulgate regulations for the registration, reporting of changes of address, and special registration of nonimmigrants under 8 U.S.C. 1303, 1305 (2004). For regulations on registration and monitoring of certain nonimmigrants, see 8 C.F.R. parts 214 and 264 (2004).

[19] Under pre-August 2002 regulations at 8 C.F.R. 264.1(a), the Immigration and Naturalization Service registers nonimmigrants using Form 1-94 (Arrival-Departure Record). As authorized by 8 U.S.C. 1302(c), the INS regulations at 8 C.F.R. 264.1(e) contain general provisions waiving the fingerprinting requirements for many nonimmigrants.

[20] No State Party shall expel, return ('re fouler ) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the state concerned of a consistent pattern of gross, flagrant or mass violations of human rights. The International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85.

[21] 605 F. Supp. 1384 (S.D.N.Y. 1985), aff d 787 F.2d 828 (2d Cir. 1986).

[22] Senate Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, Final Report, S. Rep. No. 755, 94th Cong., 2d Sess. (1976).

[23] In February 2003, U.S. District Court Judge Charles S. Haight, Jr., approved substantial modifications to the consent decree that had limited the NYPD's ability to investigate political activity. He also ordered that the NYPD adopt internal guidelines to ensure that the NYPD did not violate people's rights under the modifications. Handschu v. Special Services Div., 2003 U.S. Dist. LEXIS 3643 (S.D.N.Y.). On March 12, 2003, the judge approved the new guidelines that require the NYPD to maintain records of investigation, but no longer require it to submit evidence justifying investigation of political groups to an independent authority prior to commencing the investigation. Handschu v. Special Services Div., 2003 U.S. Dist. LEXIS 13811 (S.D.N.Y.).

[24] In a letter dated February 3, 2004, Stephen L. Hammerman, deputy commissioner of legal matters, New York City Police Department, wrote in response to this written testimony: The comments of Arthur N. Eisenberg inaccurately mischaracterize not only the history of the Handschu case but also the recent litigation surrounding it. Because the old Handschu guidelines seriously hampered the investigation of activities engaged in during the preparation stage for terrorist activity when such preparations were made under the cover of First Amendment activity, (as they were in the case of the World Trade Center bombing in 1993), the NYPD applied to the court for a modification. After a highly contested litigation presided over by the Honorable Charles S. Haight, the court agreed that modification was inappropriate. Mr. Eisenberg's allegation that the NYPD violated the new Handschu guidelines within days of their becoming effective must be rejected since that same argument was made vigorously to Judge Haight who made no such finding. Mr. Eisenberg's obvious bias is evident in his assumption without a scrap of factual support, that the NYPD is gathering information about political dissent where there is no law enforcement purpose. The NYPD continues to deal with the terrorism issue while rigorously adhering to the new Handschu guidelines.

[25] NY CLS Pub. 0 87(f) (2003).

[26] Section 214(a)(1) of the Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135 (2002), provides that critical infrastructure that is voluntarily submitted to a covered Federal agency for use by that agency regarding the security of critical infrastructure and protected systems . . . shall be exempt from disclosure under the Freedom of Information Act. This provision, subtitled as the Critical Infrastructure Act of 2002, grants authority to impose a fine, up to a year of imprisonment, or both, as well as removal from employment, upon any government offender who discloses this protected infrastructure information. The Department of Homeland Security has issued proposed rules for 6 C.F.R. part 29 to implement this provision. Procedures for Handling Critical Infrastructure Information, 68 Fed. Reg. 18524 (2003). These procedures do not apply to, or affect any requirement pertaining to, information that must be submitted to a Federal agency or pertaining to the obligation of any Federal agency to disclose such information under FOIA.

[27] Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portion thereof that . . . (f) if disclosed could endanger the life or safety of any person. NY CLS Pub. 0 87(f) (2003).

[28] Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portion thereof that: . . . (i) if disclosed, would jeopardize an agency's capacity to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures. NY CLS Pub. 0 87(i) (2003).

[29] Memorandum for the United States Attorney, Southern District of California, from Teresa Wynn Roseborough, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Assistance by State and Local Police in Apprehending Illegal Aliens (Feb. 5, 1996). This opinion was overruled by an unpublished opinion. Possible justification for this opinion is United States v. Salinas-Calderon, 728 F.2d 1298 (10th Cir. 1984), which found that local law enforcement officers have general investigatory powers to inquire into immigration violations. In United States v. Vazquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999), the court upheld a police officer's arrest for unlawful presence in the country, a civil immigration offense.

[30] Section 133 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 646 (amended 8 U.S.C. 1103(a)), allows the Attorney General to enter into agreements to delegate immigration powers to local police during a period of declared mass influx of aliens, but only through negotiated agreements, documented through Memoranda of Understanding.

[31] 8 U.S.C. 1105, 1379 (2004).

[32] In a letter dated February 3, 2004, Stephen L. Hammerman, deputy commissioner of legal matters, New York City Police Department, wrote in response to this written testimony: The comments of Michael Wishnie include a statement that Police Commissioner Kelly has stated that the NYPD will make arrests for immigration violations in New York City. Commissioner Kelly's statement is recited out of context. The NYPD does cooperate with the Bureau of Immigration and Customs Enforcement, to the extent that an NCIC check of a person who has been detained for other reasons reveals that he or she is wanted by federal authorities for an immigration violation that also constitutes a federal crime. It is entirely appropriate that such criminal status should be communicated to federal authorities. It is our understanding that only those whose immigration offenses that carry criminal penalties are entered into the NCIC database. Therefore, our notification to federal authorities when a person comes into NYPD custody and is listed as an immigration violator in NCIC does not mean that the NYPD is making arrests for immigration violations, and the arrests that are made are not illegal.