Alien Sues, Saying NYPD Called in Feds (New York Sun)

Alien Sues, Saying NYPD Called in Feds
By JOSEPH GOLDSTEIN
Staff Reporter of the Sun
March 31, 2008


An unlicensed cab driver will seek to show a federal jury this week that the police department is failing to abide by Mayor Bloomberg's pledge that the city won't alert immigration authorities to illegal aliens who otherwise obey the law.
The case of the cab driver, Waheed Saleh of Jenin in the West Bank, indicates that a New York City police lieutenant casually tipped off a federal immigration officer about Mr. Saleh's immigration status, court documents in the case show.
Mr. Saleh's civil trial against the lieutenant and another police officer is expected to begin tomorrow. It may be the first time that the city has been called to account in connection with Mr. Bloomberg's Executive Order 41. Issued in 2003, that order was intended to encourage illegal immigrants to seek out help from the police department and other agencies and allay fears that the city would turn their names over to federal immigration officials.
Court records show that police officers considered Mr. Saleh to be a troublemaker who could turn violent when confronted by the minor annoyances of big-city life, such as a dispute over a parking spot or the high price of cigarettes. In one instance, officers responded to a 911 call from a bodega employee who claimed Mr. Saleh threw a pack of cigarettes at him after a dispute over its price, according to court documents. In another instance, police officers broke up a fistfight between Mr. Saleh and another man over a parking spot, according to depositions. Police believed that Mr. Saleh, earlier in the fight, had tried to use his vehicle to ram a person standing in the street, the documents say.
Mr. Saleh maintains that the immigration tip-off was in retaliation for the repeated complaints he had made against the second police officer he is suing, Kishon Hickman, who policed the intersection of 231st Street and Broadway in the Bronx, where Mr. Saleh often sought fares for his cab. The complaints, which alleged general harassment but were never substantiated, were made to the Civilian Complaint Review Board, which investigates allegations of police misconduct.
Mr. Saleh's lawsuit claims that the retaliation he believes he faced in response to his complaints amounts to a violation of his First Amendment rights. Two acquaintances of Mr. Saleh have filed affidavits in court claiming that Officer Hickman told them to tell Mr. Saleh to drop his complaints or the police would cause him difficulties.
Depositions of police officers and federal immigration officials do indicate that police at the 50th precinct did try to get Mr. Saleh deported. When an agent with the Immigration and Customs Enforcement, Rodger Werner, was at the precinct house in late 2003 or early 2004 in search of someone other than Mr. Saleh, a police lieutenant, Kevin Nicholson, volunteered him with Mr. Saleh's name, Mr. Nicholson, who is now a captain, said in a deposition. And on December 20, 2004, Mr. Nicholson and other officers tipped off the federal agents that Mr. Saleh could be found at his usual intersection. Mr. Nicholson sat in a nearby car until the federal immigration agents had arrested Mr. Saleh.
There is some dispute as to what role Officer Hickman, the recipient of Mr. Saleh's complaints, played in alerting immigration authorities about Mr. Saleh. In a deposition, Officer Hickman said he had never spoken to any federal immigration officers about Mr. Saleh. In a police report and a deposition, a second immigration officer, Mark Limongelli, claims he was in contact with Officer Hickman about what Mr. Hickman described as Mr. Saleh's "disturbances in the neighborhood," including his driving an unlicensed livery cab.
The city's policy for not sharing information with the federal government about illegal immigrants contains an exception for immigrants suspected of crimes. Given Mr. Saleh's trouble with the law, he appears to fall under that exception. Police policy in effect at the time, but no longer, required communications between the NYPD and federal immigration officials to begin with a written report that went through the NYPD's Intelligence Division. A police Internal Affairs Bureau report concluded that Captain Nicholson did violate the procedures on alerting the federal immigration officials in Mr. Saleh's case. But the report, which was filed in federal court, found that Mr. Saleh's claim that Captain Nicholson was acting in response to the complaints against Officer Hickman was unsubstantiated.
"What you people believe is I am trying to get this guy for complaining," Captain Nicholson said of Mr. Saleh in a deposition. "It is not the truth."
Captain Nicholson, in the deposition, said he was not aware of the procedures required of NYPD officers who wanted to pass on information to immigration authorities. He said he believed he was allowed to release information about immigration status to federal agents if the the alien "is engaged in criminal activity."
Mr. Saleh is represented by the firm O'Melveny & Myers LLP. Lawyers on the case could not be reached for comment. A spokeswoman for the city law department declined to comment.
"It may be sound practice for NYPD officers to alert ICE when they encounter unlawful aliens under normal circumstances, but when they do so for retaliatory purposes, they run afoul of the Constitution," the judge handling the case, Sidney Stein of U.S. District Court in Manhattan, wrote in a ruling allowing the case to go forward last year. ICE stands for Immigration and Customs Enforcement.
Judge Stein noted that there is no evidence to suggest either Captain Nicholson or Officer Hickman had ever contacted federal immigration officials about any other illegal immigrant besides Mr. Saleh.
At one point, Mr. Saleh had been released from federal custody on bail. His current whereabouts could not be verified. He is expected to be present for his trial.