DECLARATION OF MICHAEL W. CUTLER

              Michael W. Cutler declares as follows:

1.              The facts set forth below are of my own personal knowledge and, if called as a witness, I could and would testify competently thereto.

2.              Since 2002, I have been a Fellow at the Center for Immigration Studies.  The Center for Immigration Studies is an independent, non-partisan, non-profit, research organization.  As a Fellow, I have provided perspectives based upon my experience with the Immigration and Naturalization Service (“INS”) about the nexus between immigration and national security, the impact of immigration on the criminal justice system, and strategies to combat illegal immigration.  I regularly speak with Special Agents and other employees who are currently employed by the Department of Homeland Security (“DHS”), U.S. Immigration and Customs Enforcement (“ICE”) (the successor to INS), members of the law enforcement community, members of Congressional sub-committees and their staffers, and other government officials involved in the enforcement and adjudication of federal immigration laws.  I also read a substantial amount of open source material provided by DHS, ICE, Customs and Border Protection (“CBP”) and other federal law enforcement agencies.  The federal immigration laws that I enforced as a Senior Special Agent are, with some changes, substantially the same as those laws in place today.      

3.              In February 2002, I retired as a Senior Special Agent for INS.  The INS ceased to exist in 2003 and is now known as U.S. Immigration and Customs Enforcement.  Prior to my retirement, I worked for INS for approximately 30 years. 

4.              My career with INS started in 1971 when I entered on duty as an Immigration Inspector assigned to the John F. Kennedy International Airport.  As an Immigration Inspector, my responsibility was to examine documents (such as passports) and to briefly interview passengers to make a determination about their admissibility into the U.S. consistent with federal immigration law.  In essence, I had my eye to the “peephole” to America’s front door.  Effectively, any state with an international airport or a seaport should be considered a border state.        

5.              By 1975, I became a Criminal Investigator (Special Agent) for the INS in New York City.  During that time I rotated through all the squads of the investigations branch of INS.  During this period of time, I often worked closely with other law enforcement agencies including the New York City Police Department.

6.              From 1988 until 1991 I was assigned as the INS representative to the Unified Intelligence Division (“UID”) of the Drug Enforcement Agency (“DEA”) in New York.  In 1991, I was promoted to Senior Special Agent and was assigned to the Organized Crime Drug Enforcement Task Force (“OCDETF”) wherein I partnered with members of other law enforcement agencies including the FBI, DEA, ATF, U.S. Customs, and local and state police, as well as law enforcement organizations in other countries. 

7.              Since 1997, I have been called by members of both political parties to testify relating to the enforcement or lack of enforcement of immigration laws and deficiencies in the immigration system before both houses of the United States Congress on more than 12 occasions.  The bulk of the testimony that I have provided to Congress has occurred since my retirement from the INS.  On one of these occasions, specifically on February 23, 2003, I provided testimony about sanctuary city policies and their negative impact on enforcement of federal immigration laws and the negative impact on our communities.  At the beginning of this Congressional hearing, Representative John Hostetler, Chairman of the House Subcommittee on Immigration, Border Security and Claims, began the hearing by discussing the abduction and brutal assault on a 42 year-old mother of two by several illegal aliens who had extensive arrest histories in New York City – a known “sanctuary city” – which never resulted in any referral to the INS by the New York City Police Department.  On March 11, 2004, I testified before congress about funding for immigration enforcement.  On March 10, 2005, I offered testimony before Congress about interior immigration enforcement resources.  I also provided testimony to the Presidential Commission on the Terrorist Attacks of September 11, 2001.

8.              During my career at INS, I gained a unique perspective by working as an Immigration Inspector, an Examiner (an Adjudications Officer) and as a Special Agent where I worked to enforce immigration laws within the interior of the United States.  Thus, I have firsthand experience of having directly worked as part of, with two of the three elements of, what I refer to as the immigration enforcement tripod:  (1) inspection; (2) border patrol; and (3) interior enforcement.  Each leg of the immigration enforcement tripod plays a critical role in the national security of the U.S. 

9.              Inspection occurs when Aliens enter the U.S. through designated ports of entry.  Upon inspection, a determination is made by an inspector to determine whether there is any reason to preclude an alien from entering the U.S.  Inspectors at designated ports of entry attempt to deny entry to aliens who would not be admissible to the U.S.  The following is a partial list of reasons why an Immigration Inspector will not permit an alien to enter the U.S.:  (1) the alien has certain communicable diseases of public health significance; (2) the alien has a physical or mental disorder and behavior associated with the disorder may pose a threat to the safety of others; (3) it is determined that the alien is a drug abuser or addict; (4) the alien has committed a crime involving moral turpitude; (5) the alien has committed a crime involving  controlled substances; (6) the alien has been convicted of two crimes which resulted in aggregate sentences of five years or more; (7) the alien has been known to be an illicit trafficker in controlled substances; (8) the alien is coming to the U.S. to engage in prostitution or has engaged in prostitution within the last 10 years; (9) aliens who have committed serious crimes but claimed immunity to avoid prosecution; (10) foreign government officials who have violated U.S. laws relating to religious freedom; (11) the alien has engaged in trafficking in persons; (12) the alien has engaged in money laundering; (14) the alien is entering the country to engage in espionage or any unlawful activity; (15) the alien has engaged in terrorist activities, is planning to engage in terrorist activities or is a representative of a terrorist organization; (16) the alien is a known war criminal; (17) the alien has been previously deported and lacks proper authority to reenter; and (18) the alien is found to be in possession of fraudulent documents.  

10.           Border Patrol is a federal law enforcement agency that is now part of US Customs and Border Protection.  Border Patrol is tasked with deterring, detecting, and interdicting (apprehending) illegal aliens who enter or attempt to enter the U.S. other than through designated ports of entry.

11.           Interior enforcement, consistent with its moniker, is enforcement of immigration laws within the borders of the U.S. and falls under the purview of ICE Special Agents.  Based upon my 30 years of experience for the INS as an Immigration Inspector, a Special Agent, and as a Senior Special Agent, I believe that the interior enforcement program was and continues to be terribly under-staffed and, in general, neglected.

12.           While the actual number of ICE Special Agents is classified, most estimates by what I consider to be reputable data sources put the number of ICE Special Agents at approximately 6,000 for the entire U.S.  A substantial portion of these agents are tasked with enforcement of U.S. Customs law and not immigration enforcement.  The President recently estimated the number of illegal aliens at 11,000,000 – other estimates are significantly higher.  Government estimates place the number of illegal aliens who have entered through ports of entry but violated their terms of admission, at 4,500,000.  According to a recent DHS report, it is estimated that there are only 272 ICE employees trying to track down these 4,500,000 immigration law violators.  In any event, there are no more than 6,000 ICE agents responsible for the interior enforcement of federal immigration laws for the more than 11,000,000 illegal aliens that are in the United States.  Thus, ICE cannot be successful in enforcing federal immigration law without the assistance of local law enforcement.       

13.           Based on any estimate for the number of illegal aliens living in the U.S., it cannot be disputed that the federal government has failed to secure the borders of the U.S or to deter the continuing entry of illegal aliens.       

14.           The federal government’s failure to secure the border, combined with the federal government’s decision not to engage in substantial interior enforcement, has created an immigration policy that effectively creates a “finish line” at the border.

15.           In other words, aliens are incentivized to make it to the border whether through lawful means or unlawful means because once an alien crosses the border there is little chance of detection in the interior of the country and even less chance of removal (deportation).

16.           The reduced chance of detection and removal creates an environment where aliens who enter the U.S. through lawful means at designated ports of entry face little or no penalty for staying in the U.S. after their permission to remain expires.  Once an alien’s permission to remain in the U.S. expires, an alien is unlawfully present in the U.S.  Aliens who were lawfully admitted become unlawfully present in the U.S. when they violate the terms of their admission into the U.S.  Examples include aliens who: (1) remain in the U.S. beyond their authorized period of admission; (2) accept unauthorized employment; and/or (3) are convicted of crimes.

17.           Alien’s previously lawfully admitted who become unlawfully present represent a risk to the security of the U.S. because they are able to establish themselves into a community and hide in plain sight.      

18.           A second way for aliens to get past the finish line (the border) and move to the interior of the U.S. to is to circumvent designated ports of entry.  By definition, anyone who enters the U.S. by circumventing designated ports of entry has entered the country unlawfully. 

19.           National security is at risk when someone circumvents designated ports of entry because the U.S. does not have any information about the identity of those persons who have entered our country or any record of their entry into our country or their presence thereafter.  Nor does the U.S. have any information about the actual number of persons who have circumvented designated ports of entry.  Most critically, the U.S. does not have information whether the person who has circumvented inspection is carrying a communicable disease, is a war criminal, is wanted in another country or is a known felon, a member of a transnational gang or cartel, or whether the alien is actually a terrorist who seeks to harm the U.S. 

20.           In my experience as a Special Agent who enforced immigration laws in the interior of the U.S., I am familiar with the various rationale for circumventing inspection at the border. 

21.           Some percentage of those persons who circumvent designated ports of entry come to the U.S. simply to work (albeit unlawfully) in an attempt to secure a better life than might be available to them in their home country.  

22.           Some percentage of those persons who circumvent designated ports of entry come to the U.S. to avoid detection and subsequent prosecution for crimes that they have committed in their home country.  The U.S., with its porous border and lack of interior immigration enforcement, becomes a haven for these aliens to hide.

23.           Some percentage of those persons who circumvent designated ports of entry come to the U.S. to blend into our communities with the plan of hiding in plain sight with the eventual goal of causing harm to the U.S. and its citizens.

24.           Some percentage of those persons who circumvent designated ports of entry travel back and forth between the U.S. and a border country to import drugs, weapons, to engage in human smuggling or trafficking, and to evade U.S. law enforcement agencies. 

25.           Aliens that have entered the U.S. unlawfully, often become the potential clients of other criminal enterprises that prey upon illegal aliens through the sale of forged or altered identity documents, fraudulent schemes to ensure the ability to stay in the U.S., and further exploitation by the criminal element.

26.           The circumvention of designated ports of entry creates a tremendous problem for the federal government because ICE does not have sufficient personnel to enforce federal immigration laws consistent with its stated objectives by solely relying on Special Agents stationed in the field.  Moreover, because of ICE’s inability to enforce federal immigration laws from within the interior of the U.S., aliens intent on entering the U.S. are emboldened and encouraged that they will ultimately succeed in entering the U.S. even if they are interdicted by border patrol on a number of occasions.  From my interviews with aliens that I have arrested or otherwise detained, I have learned that U.S. immigration policies have contributed to aliens adopting the view that they only need to keep trying to circumvent the border one time more than they are caught to be successful at entering the U.S.   

27.           During my time as an INS Special Agent, INS would prioritize its enforcement efforts in an attempt to seek removal for those persons most likely to cause harm to the U.S.  The same is true today now that immigration enforcement falls under the direction of DHS and more specifically, ICE.  In fact, I personally worked with Senator Al D’Amato to prioritize criminal aliens, distinguish aliens by subjecting such criminal aliens to enhanced penalties who reentered the country after a formal order of removal after a criminal conviction, and to hold removal proceedings inside the jail to expedite the adjudication of removal proceedings. 

28.           I am aware that ICE, on June 30, 2010, posted a memorandum outlining ICE’s enforcement priorities for the (world to see).  Setting aside the peculiar timing and tone of the memorandum, ICE has identified its highest enforcement priorities as (1) national security; (2) public safety; and (3) border security.

29.           As a Special Agent for more than 26 years, I have come to the conclusion that ICE must rely on local law enforcement to even attempt to work towards its highest enforcement priorities because ICE Special Agents only come into contact with a small portion of the alien population that has entered the U.S. or that remains in the U.S. unlawfully. 

30.           Local law enforcement, on the other hand, has regular contact with members of the public including aliens.  These daily contacts by local law enforcement represent a critical tool in assisting ICE with its highest enforcement priorities because local law enforcement can assist ICE in the identification of those aliens who are unlawfully present in the U.S.

31.           Specifically, each time a local law enforcement officer has contact with a person, whether a U.S. citizen, a lawful alien or an unlawful alien, the officer will almost always try and identify the person to make sure there are no outstanding criminal or administrative warrants that would cause the local law enforcement officer to take the person into custody to protect the safety of officers and the community.  Further, as it relates to ICE’s highest enforcement priorities, local law enforcement plays a critical role in identifying aliens so that ICE can make a determination about whether or not ICE should seek to lodge a detainer and or to take other appropriate actions to effect the removal of the alien. 

32.           I can think of no situation where ICE would not want a local law enforcement officer to assist in the identification of someone unlawfully present in the U.S.  These contacts can result in improved national security because, at least from time to time, some of these aliens identified by local law enforcement may be significant threats to the U.S. and wanted by ICE and/or other federal authorities.  It is important to note that some of the 9/11 terrorists had interaction with police officers prior to engaging in the worst terrorist attack in U.S. history.  On other occasions, ICE may in fact determine that an alien identified by local law enforcement is not an enforcement priority under ICE’s current prioritization. 

33.           Local law enforcement can also play a critical role in assisting ICE in enforcing federal immigration laws by creating a deterrent because of its ability to inquire into the immigration status when reasonable suspicion exists that someone is unlawfully present in the U.S.  This deterrence can assist in removing some of the pressure on the border.

34.           I am also aware that some cities become sanctuaries to aliens unlawfully present through the creation of policies that prevent local law enforcement officers from inquiring into an alien’s immigration status even when the officer has reasonable suspicion that an alien is unlawfully present in the U.S.  These cities are sometimes referred to as “sanctuary cities.”

35.           The creation of sanctuary cities actually hurts ICE in its efforts to conduct its highest enforcement priorities because it results in less identification of potentially dangerous unlawful aliens by local police officers.  In other words, when ICE is left to enforce federal immigrations laws on its own, its efforts are substantially limited.  On the other hand, permitting local law enforcement to inquire into an alien’s immigration status when they have already been stopped, detained, or arrested will actually assist ICE to meet its highest priorities as local law enforcement assists ICE in becoming aware of those aliens who would be considered a high priority for removal or other appropriate action.  Moreover, an argument could certainly be made that cities that create sanctuary policies are actually in violation of 8 U.S.C. § 1324 which creates criminal penalties for “knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation” (8 U.S.C. § 1324(a)(1)(A)(iii)) or “encourage[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of that fact that such coming to, entry, or residence is or will be in violation of law.”  8 U.S.C. § 1324(a)(1)(iv); see also 8 U.S.C. § 1324(a)(1)(v)(II) (“aids or abets the commission of any of the preceding acts”).  In other words, if the federal government was interested in enforcing federal immigration law it would be actively working to end sanctuary city policies throughout the U.S.

36.           I am personally familiar with one example in which a city’s sanctuary policy prevented local law enforcement officers from assisting in the enforcement of federal immigration law leading to the death of a police officer.

37.           Specifically, in 1986, I personally escorted Renaldo Rayside to the airport after an immigration judge entered an order of removal to deport Mr. Rayside to Panama due to his conviction on several drug charges.

38.           Within two years, Mr. Rayside had returned to the U.S. via unknown means.  Once inside the country, according to published newspaper accounts, Mr. Rayside was charged at least twice with resisting arrest by New York City police officers.  But New York City had policies in place that prevented city law enforcement officers from contacting INS even when they had reasonable suspicion that a person in their custody was unlawfully present in the U.S.

39.           New York City’s sanctuary policies precluded its officers from contacting INS to inquire about Mr. Rayside’s immigration status.  Had INS been contacted, INS would have detained Mr. Rayside based upon his criminal conduct and based upon his presence in the U.S. despite having been previously removed.  Mr. Rayside would have been either imprisoned and prosecuted for reentering the U.S., or would have been deported. 

40.           On March 3, 1989, as a result of New York City’s sanctuary policies, Mr. Rayside was still present and at-large in the U.S. (albeit unlawfully) when he was stopped for questioning by Officer Robert E. Machate.  On this day, Mr. Rayside wrestled Officer Machate’s gun from him and used it to shoot him through the back.  Officer Machate died as a result of the gunshot wound.

41.           New York City’s sanctuary city policies during this time period, or any sanctuary policy that prevents local law enforcement from contacting federal immigration authorities for that matter, are inconsistent with ICE’s highest priorities listed in its June 30, 2010 memorandum.  In other words, ICE’s highest priorities are more likely to be met when local law enforcement is permitted to contact ICE when contact is made with a potentially dangerous illegal alien.  Sanctuary city policies also have a potential harmful effect on officer safety and the safety of the community.

42.           Local law enforcement is in the unique position of being able to assist ICE to meet their highest priority of removing the most dangerous persons from the U.S. as it simultaneously enforces state or federal law in other areas.  As an example, persons are regularly stopped by local law enforcement for minor traffic violations but – once the person is identified – the minor traffic violation can result in the arrest of someone wanted for a violent crime or some other significant felony.  It is simply nonsensical for ICE to suggest that it can more appropriately enforce its highest priorities if local law enforcement ignores a person’s immigration status. 

43.           Just as local law enforcement is in a unique position of being able to assist ICE to meet their highest priority of removing the most dangerous persons from the U.S., ICE stands in a unique position to assist local law enforcement.  In my experience as a Special Agent, I was often asked by local law enforcement to provide testimony at bail hearings to provide INS’ perspective about the flight risk of a particular alien.  In fact, INS’ (and now ICE’s) files can be a treasure trove of information about an alien’s lack of ties to the community, failures to appear for prior hearings, or their record of using false or non-existent identities or addresses.                         

44.           As someone concerned about the security of the U.S. border, I have read Senate Bill 1070.  Based upon my 30 years of experience enforcing federal immigration laws, Senate Bill 1070 does not seek to enforce federal immigration laws beyond what is permitted by the Immigration and Nationality Act and its amendments.  Rather, Senate Bill 1070 prevents the creation of sanctuary cities, a detriment to assisting ICE in meeting its highest enforcement priorities, and provides local law enforcement with the ability to assist ICE in meeting ICE’s stated objectives as well as the objectives of local and state police officers.

45.           Senate Bill 1070 leaves actual enforcement, including the setting of enforcement priorities, in the hands of DHS and ICE who are charged with enforcing federal immigration laws.  Also, it is important to note that the actual removal of aliens falls under the exclusive control of ICE and Senate Bill 1070 has no impact on this authority. 

46.           As a former Special Agent, I believe that being able to have the assistance of local law enforcement is critical in helping ICE to remove the most dangerous unlawful aliens from the U.S. in order to protect our nation’s security, protect the safety of the public, and to secure our border.  Cooperation between local and state law enforcement, CBP, and ICE creates a synergy that will improve the results of all agencies involved and, as a result, will improve national security and community safety.                                  

I declare under penalty of perjury that the foregoing is true and correct.

DATED ______________ .

New York.

11733636