Don't Ask, Do Tell

Outcry Over New City Policy on Reporting the Undocumented Stuns the Mayor

After a month of wrangling over a new executive order issued at the end of May by Mayor Michael Bloomberg, community activists and City Council members working to safeguard immigrants' access to city services are hopeful that the mayor will revise the policy, which, they say, declares open season on the undocumented.

Sources in the administration report that the mayor was stunned by the outcry against his new policy, which, he has said, is meant to protect immigrants while complying with federal law. "The mayor is completely committed to clarification," says Sayu Bhojwani, the city's commissioner for immigrant affairs. But what form that clarification will take—an addendum to the executive order? agency-level employee guidelines? mayoral support for the City Council's Access Without Fear Bill?—she could not predict.

The Bloomberg order replaces provisions that were put in place by Ed Koch and reiterated by every mayor since, under which city employees—cops, teachers, welfare workers, health professionals—were prohibited from passing information about someone's immigration status to federal officials (unless that person was accused of committing a crime). Bloomberg's edict, Executive Order 34, aims to bring the policy into line with federal laws passed in 1996, by removing the ban on reporting information requested by the feds. Where once city workers could ask but not tell, now their instructions are reversed: Don't ask, do tell.

But the policy is trickier than it looks, critics say. Because many public services are available only to immigrants residing in the U.S. legally, city workers sometimes have to inquire about status in order to determine whether someone is eligible for a particular program. Take a woman applying for welfare. She doesn't qualify if she is undocumented. If the social worker doing the intake learns that the woman is here illegally, he is not required under EO 34 to phone immigration authorities with the news. But he may do so—even if no federal official demands the information. That alone, advocates fear, could deter immigrants from seeking assistance in hospitals, domestic violence programs, public schools, and so on.

What's more, EO 34 exempts police from even the "don't ask" stipulation. According to a literal reading of Bloomberg's directive, a cop interviewing witnesses to a robbery in a neighborhood grocery could ask them about their visas and pass the information on. As written, explains attorney Scott Rosenberg, an expert on such policies, the order "allows police to make sweeps of immigrants who are not suspected of any crime."

Whether the mayor meant for EO 34 to give law enforcement such broad powers has been a matter of rancorous debate since its surprise announcement just after Memorial Day. At a June 3 press conference at City Hall, dozens of immigrant advocates and City Council members railed against the order. On his way into the building just as the press conference was breaking up, Bloomberg carped that the participants "don't know how to read" and insisted that EO 34 "is the same policy" as Koch's.

Anti-immigration advocates happily beg to differ. In their view, says Craig Nelsen, executive director of Friends of Immigration Law Enforcement, EO 34 is "a step in the right direction." (Nelsen also founded Project USA, which promotes immigration restriction and caused a stir in New York in 1999 for posting billboards around the city with such messages as "Tired of traffic? Everyday, another 6,000 immigrants arrive. Everyday!!")

FILE pressed for the congressional hearings that took place in February, where New York officials had to justify why four undocumented men accused of raping a woman in Queens were not turned over to the INS, which has now become the Bureau of Citizenship and Immigration Services. (At the hearing, John Feinblatt, criminal justice coordinator for New York, explained that the city's "don't tell" policy never applied to those involved in crimes. Cops frequently called the INS, but immigration officials at the dysfunctional agency simply did not respond.) Nelsen brags that FILE's efforts helped bring about the change in New York law. The ultra-conservative Washington Times sees it the same way. "As a result of the crime," a recent story asserts, referring to the rape in Queens, "New York repealed its sanctuary resolutions, which had been in place since 1989."

The mayor and his deputies maintain, however, that EO 34 did no such thing (and decry as ludicrous the suggestion that FILE had any role to play in it). The administration went into aggressive damage-control mode after the June 3 press conference, holding its own briefing for members of the ethnic and community press on June 6 to try and undo what Carol Robles-Roman, deputy mayor for legal affairs, calls "the unnecessary fear some folks generated." Each city agency, she notes, puts together its own employee guidelines that are mindful of the need for immigrants to feel unafraid when they access city services. A new police patrol guide, she says, "tells officers not to inquire about the immigration status of victims or witnesses or others seeking assistance." All the new executive order does, she explains, is frame New York policy within the parameters of federal requirements. Otherwise, the city would be seen as flagrantly defying laws enacted by Congress.

Those laws were part of the draconian welfare and immigration reform bills of 1996. Rudolph Giuliani challenged the constitutionality of these federal statutes, arguing that they infringed on the city's right to regulate the conduct of its own workers. His challenge was dismissed, and the dismissal was upheld on appeal as courts ruled that federal laws have supremacy over local ones.

But the court of appeals acknowledged that state and local governments do have a vital need to provide confidentiality in a range of instances, and it suggested that a valid policy would be one that was general—not directed solely at immigration authorities, but instead concerned with how to handle the whole array of information gathered in the course of official business. The Charter Revision Commission of 2001 stepped into that opening and recommended City Charter amendments—which were passed overwhelmingly—that would authorize generalized confidentiality protections, shielding such information as health or disability status, sexual orientation, and whether the person is a victim of domestic violence, as well as immigration status. But these measures have yet to be enacted.

For about a year, advocates had been urging Bloomberg to issue a new executive order with this more generalized language, while at the same time seeking to codify the principle into law with the Freedom of Access Bill, which was introduced by City Council member Hiram Monserrate and now has more than 33 endorsers. According to Monserrate, he and other advocates met repeatedly with the mayor to press for his support for this generalized approach, first in early May and then again on May 27.

Little did they know that in the meantime the mayor had quietly drafted and—on May 13—signed EO 34. At the May 27 meeting, advocates saw the measure for the first time and, says Monserrate, "expressed our concerns about the broad carve-out for law enforcement. We were told they'd consider our input." Days later, Monserrate opened Newsday and was "shocked" to see that the administration had announced EO 34 publicly. "We thought we were in a process of negotiation," he says. Monserrate met with Bloomberg again in late June and now awaits what he hopes will be a revision to the order.

For Councilmember Bill Perkins—a co-sponsor of the Access Without Fear Bill—EO 34 reveals a "Republican Patriot Act mentality" seeping into the administration. It also exposes, others suggest, the mayor's efforts to position himself favorably with his national party by bowing to pressure from Washington.

"This policy was not designed to respond to a group of conservative Republicans," scoffs Bhojwani. "The mayor is making a great effort to do what is right, and his willingness to work with council members and talk about the possibility of revision is a further indication of that commitment."

Even so, the mayor had to realize that EO 34 was issued in a context. Just as President Bush's insistence that he's pro-immigrant (and seeking Latino votes) coincides with his Justice Department's draconian crackdowns, the mayor's public support for an amnesty for the city's undocumented residents can coincide with policies that look less than friendly. It's not just that immigrant communities have been devastated by post-9-11 sweeps, widespread deportation, and strict registration requirements. The mayor himself has given them local reasons to be wary. His recruiting of former CIA operations director David Cohen as the NYPD's intelligence commissioner after 9-11 signaled new enthusiasm for sharing police information with the feds. Then the administration successfully challenged a long-standing city agreement that prevented police surveillance of New Yorkers unless there was some evidence of criminal activity. As a result, police can spy on political activists, worshipers at mosques, and anyone else they take an undercover fancy to.

It's an intimidating environment, to say the least, and immigrants have been feeling the chill. So it's no surprise that advocates would envision the worst-case scenarios that the letter of the law allows, no matter what the mayor claims EO 34 means. In the current climate, says the New York Civil Liberties Union's Donna Lieberman, "It's not enough just to say, 'Trust me.' "

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