New York Works Too Closely With ICE, Critics Say

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Luis was sleeping in his Harlem home when police arrested him on charges of second-degree murder in September 2007.

Today, all charges against the college student have been dismissed, but now Luis faces possible deportation to his native Mexico, after his immigration status became known to federal authorities upon arrival to Rikers Island Correctional Facility.

Governor Andrew Cuomo suspended the controversial federal immigration program Secure Communities at the beginning of the month. But for far longer immigration advocates and some politicians have argued that the city works too closely with Immigration and Customs Enforcement (ICE), through another federal immigration initiative, the Criminal Alien Program.

Consequently, they argue, a large number of individuals without prior criminal record are deported, and the relationship between law enforcement and immigrant population is damaged in the process.

"The concern is the level of … unfettered access that ICE agents in Rikers Island have to information of people that are brought to Rikers," said Melissa Mark Viverito, member of the City Council, who has been at the forefront of efforts to limit access ICE has to inmates at Rikers.

An immigration hold or detainer was lodged against Luis the same day he arrived at Rikers Island. After his case was closed, he was sent to a deportation facility in Texas, and today he is waiting for another appearance before an immigration judge who will decide what happens next.

WNYC withheld Luis' last name at his request because of his pending immigration case.

The Department of Corrections, through the Criminal Alien Program, makes information on foreign-born arrestees available to ICE, whose agents are stationed at Rikers and interview inmates there.

The Department of Corrections, in a statement to WNYC, emphasized the information it provides to ICE is also available to everyone else on their Website. Additionally, they said, since 2009, inmates are given advance notice of ICE interviews and provided with a form available in eight languages, which gives them the option to decline an interview.

Criminal Alien Program, ICE argues, allows them to target illegal aliens with a criminal record and prevent them from being released into the general public and potentially committing other crimes. But critics argue that those who are wrongfully arrested, such as Luis, as well as those who are eventually found innocent or apprehended on minor offenses are also swept up in the program.

According to a research done in 2010 by Justice Strategies, a nonpartisan research organization, 34 percent of noncitizens charged with the most serious felonies received an ICE detainer, but so did over half of those arrested on a misdemeanor.

"I think the policy should be: if you're convicted of a felony, yes, you should be deported," said Robert Morgenthau, who served for 35 years as Manhattan’s District Attorney. "But short of that, if you’re arrested because you overstayed your student visa, or if you're driving with a broken headlight, or any other minor offense, that's not a ground for deportation."

In an interview with WNYC, Morgenthau, who has been a vocal critic of this cooperation between the local authorities and federal immigration officials, said he believed only names of those who are convicted of violent crimes should be turned over to ICE.

He, as well as some other critics, emphasize the most severe consequence of the cooperation is the lack of trust in law enforcement it creates among the immigrant population, undermining the Mayor’s Executive Order 41, which prohibits city agencies from inquiring about immigration status when people seek services from a city agency or witness a crime.

The mayor's office declined requests for a comment.

"NYPD itself has recognized that when the criminal justice system is seen by immigrant communities as the gateway to deportation and detention, immigrant witnesses and victims of crimes are fearful to come forward and cooperate," said Peter Markowitz, associate clinical professor of law at Cardozo School of Law. "Any time any segment of our population is afraid of the police it makes us all less safe."

According to ICE, in the fiscal year 2010, 8,969 immigration detainers were issued in New York. In the same period, 171,281 aliens who were processed nationwide under the Criminal Alien Program were removed.

While some City Council members, including Speaker Christine Quinn, have raised concerns with the Department of Homeland Security about the program, others, such as Peter Vallone Jr., are convinced the program functions exactly as it should.

"You cannot tell federal agents that they can ignore the law, which is to deport illegal aliens that are in their possession," said Vallone.