Untitled Document

Executive Order 41

How New York City laws affect illegal immigrants seeking city services.

Melanie Brooks

You know you’re living in the shadows when video surveillance cameras can’t register your presence on their monitors. In April 2005 Ming Kuan Chen, a 35-year-old Chinese food deliveryman spent 80 hours stuck in an elevator in a high-rise apartment building in the Bronx. Despite cries for help, Chen suffered unnoticed for three days without food or water until firefighters finally found him.

Chen was an innocent victim to a broken elevator, but when the story of his ordeal hit the press, unnamed police sources leaked his immigration status to the media. No one knows why the NYPD divulged this information but it caught the interest of the Immigration and Customs Enforcement agency which contemplated beginning deportation proceedings for Chen a month after his rescue. Recent attempts to follow up on the story were unsuccessful.

All this happened in spite of the fact that two years ago New York City granted undocumented immigrants the right to contact any public official or police officer without having to fear questions of immigration status.

There are hundreds of thousands of illegal immigrants who make New York City their home and lead ordinary lives.

But they live in constant fear of being discovered and sent back home. If they witness a crime, are assaulted, or fall ill, many will rather suffer in silence than risk contacting the authorities. This makes New York less safe for all its inhabitants.

In 2003, New York City Mayor Michael Bloomberg, signed a new law called Executive Order 41 that protects the rights of undocumented people to use New York City services without the fear of deportation. EO41 prohibits doctors, police officers and other city employees from inquiring about a person’s immigration status when they seek assistance. Even if they learn a person’s true status, it is illegal for them to report it to immigration services, except in “limited circumstances.

Immigrant advocacy groups say the law isn’t being followed to the letter.

“We believe that EO41, if properly implemented and publicized, has tremendous potential to increase public safety for all New Yorkers. However, when high-profile cases clearly show that the NYPD is playing a role in disclosing confidential information about the immigration status of those who seek police assistance, it revives rather than allays fear of the police in immigration communities,” wrote Margie McHugh, executive director for the New York Immigration Coalition (NYIC) to Mayor Bloomberg in May 2005.

The NYIC is a policy and advocacy group that works with immigrants and refugees and has been fighting for a revision to EO41 since its signing this past spring.

The NYIC claims that EO41 is being undermined by the NYPD’s current practice of arresting illegal immigrants based on information contained in the National Criminal Information Center (NCIC) database. Law enforcement officers across the country use the NCIC database over 3 million times a day. When you get pulled over for speeding, it’s the NCIC database that scans your license to pull up information, which includes any criminal history you may have on record.

The problem is that the FBI enters information on civil violations (like immigration violations) into the NCIC database. Based on this information, the NYPD has been arresting illegal immigrants and handing them over to Immigration and Customs Enforcement – which, according to the NYIC, undermines the very essence of EO41.

Alberto Gonzales, the U.S. Attorney General, said in 2002 that “only high-risk aliens who fit a terrorist profile” would be included in the database. The NYIC claims that despite Gonzales’ statement, the FBI has entered over 400,000 illegal immigrants with “outstanding orders of removal” and an additional unknown number of persons who failed to register with a post 9/11program called “Special Registration”. Over 80,000 immigrants registered with authorities in the year before the program was shut down and at least 13,153 of them were put into deportation proceedings.

On the one hand Mayor Bloomberg states that immigrants in New York City shouldn’t fear the police while, on the other hand, Police Commissioner Ray Kelly states that the NYPD will make arrests on illegal immigrants based on information in the NCIC database.
“It’s going to be challenging to get the stronger language we want in the executive order,” says Avideh Moussavian, a Policy Associate at the NYIC.

Getting the word out

The Civilian Complaint Review Board (CCRB) is an independent bureau that handles civilian complaints against police officers.
According to a New York Times article published on September 26, 2005, Waheed Saleh, a gypsy-cab driver from the Middle East, complained to the CCRB about being harassed by Kishon Hickman, an NYPD police officer. Journalist Nina Bernstein wrote, “Before he heard back from the board, however, he heard from federal immigration authorities.”

In an October 12th meeting, the board of the CCRB talked about the article and discussed how to reaffirm confidence in their organization. In this meeting Commissioner Denis deLong pledged renewed communication between the CCRB and the ethnic press.

“I think some additional kind of communication, some assurance to the ethnic media to the effect that our doors are always open and retaliation is not something we treat lightly and we will pursue it vigorously,” said deLong, who added, “what I am talking about is specifically an outreach by way of a press release or a letter to the editor or something.”

“We reached out to immigrant organizations, networks, media, and immigrants themselves,” said Erica Gonzales, spokesperson for immigrant affairs, when asked how word of EO41 reaches the people it is meant to protect.

Mimi Feo, a former illegal immigrant from England didn’t know about EO41 until a national television program The O’Reilly Factor asked her to appear on the show to talk about her controversial blog about her life as an illegal immigrant and stripper. Mimi says she was constantly looking over her shoulder afraid of getting deported.
So how do illegal immigrants learn about these bills and executive orders passed by the government to supposedly help them lead better lives? Word of mouth.

“In general there is a better understanding in some districts than in others,” says Moussavian who goes on to say that the local neighborhood government and community groups really have to try to get the word out there to residents.

Looking into the future, Moussavian is concerned with the fact that Mayor Bloomberg and Police Commissioner Ray Kelly continually claim, on the record, that they uphold EO41 but in fact there is no real distinction as to who is in charge of oversight.

“The tracking of violations is tricky,” says Moussavian. Especially when there is no one appointed to oversee enforcement.
Sometime in January 2006, Hiram Monserrate, a councilman from Queens, will reintroduce a bill called “Access Without Fear.” This bill was first introduced to city council in December of 2002 after Mayor Bloomberg reversed the “don’t ask don’t tell” practice that had been recognized by three former NYC mayors. Immigrant advocacy groups were up in arms about EO34 and weren’t keeping quiet about their anger.

Monserrate explained to the U.S. Commission on Civil Rights that “Access Without Fear” was created to fill a gap in a similar Executive Order (number 124) that was originally issued under Mayor Ed Koch. EO124 was challenged by the Second Circuit saying that it could only stand if the order pertained to generalized confidentially needs rather than for immigrants only.

“Access Without Fear” is much like EO41 because it grants access and confidentiality to New York’s undocumented workers. According to Moussavian, “Access Without Fear” was originally used as an advocacy tool in getting Mayor Bloomberg to sign EO41. In the future “Access Without Fear” will hopefully further EO41’s mission, clarify the language and officially appoint overseers.

“It’s highly unlikely that a future mayor will reverse the trend,” says Moussavian. The fact that a republican New York Mayor signed EO41 is significant in the eyes of policymakers.

The need for undocumented immigrants to access city services will not go away. How or whether NYC allows them to do that without getting deported has been a controversial subject for decades. Today in post 9/11 New York there is awareness like never before that as long as thousands of immigrants continue to reside in NYC, they must be accommodated with fairness and understanding.