D.  Appeals Courts Split Over

Access to Immigration Hearings  

 

      A split between two federal courts of appeal means the U.S. Supreme Court probably will be called upon to decide whether the First Amendment guarantees a presumptive right of access to “special interest” immigration proceedings.

      The issue arose after more than 700 foreign nationals (mostly Muslim men) were secretly jailed and given secret detention hearings following a Sept. 21, 2001 blanket directive from Chief Immigration Judge Michael Creppy to close all immigration hearings of “special interest.”  News organizations, civil liberties groups, and politicians in two areas with large Muslim communities – Detroit and Patterson, N.J. -- sued for access to closed immigration hearings when large numbers of Muslim men disappeared from their communities.

 

Sixth Circuit: Open Hearings

      A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit ruled on Aug. 26, 2002 in Cincinnati that the procedures followed by immigration courts since Sept. 11 were unconstitutional.  The court said the procedures imposed an across-the-board closure of immigration proceedings in any case labeled “special interest” without a hearing to determine whether closure was necessary to protect any compelling interest.  The court found that the First Amendment requires a presumption of openness that must be applied to immigration proceedings.  Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002).

      The court noted that democracy requires openness: “The only safeguard on this extraordinary governmental power is the public, deputizing the press as the guardians of their liberty.”

      The court chastised the government over the secrecy of the “special” immigration proceedings: “Today, the Executive Branch seeks to take this safeguard away from the public by placing its actions beyond public scrutiny.  Against non-citizens, it seeks the power to secretly deport a class if it unilaterally calls them ‘special interest’ cases.  The Executive Branch seeks to uproot people’s lives, outside the public eye, and behind a closed door.  Democracies die behind closed doors.”

      The Sixth Circuit opinion affirmed by a 3-to-0 vote a trial court order in a case involving Rabih Haddad, a Lebanese immigrant who was detained after Sept. 11.  His case was designated “special interest” and the proceedings were closed.  The closure was challenged by the Detroit News, Detroit Free Press, and Rep. John Conyers (D-Mich.).

      The court acknowledged that the Executive Branch has broad powers to create immigration policies, but the court ruled that such power is limited to substantive rules, such as the standards for permitting immigrants or deporting violators.  The court found that the government cannot avoid basic constitutional protections that form the basis of our democratic procedures.  “We hold that the Constitution meaningfully limits non-substantive immigration laws and does not require special deference to the Government.”

      The court found that even though immigration proceedings are “administrative” rather than “judicial,” they have substantial judicial characteristics.  Therefore, the constitutional protections applied to judicial proceedings, such as openness, must also be applied to immigration courts.  The court found that the First Amendment right of access to judicial proceedings set forth in the 1980 Supreme Court case Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), should be applied to immigration cases.  Richmond Newspapers requires courts to apply a presumption of openness that may be overcome only where there is evidence of a compelling need for closure and the closure is narrowly tailored.  An across-the-board closure would not meet such a test.

      The Sixth Circuit stated that the desire to protect national security may be a “compelling interest,” but the immigration judge had failed to make particularized findings to justify closure.  The “Creppy Memorandum” on which the closure was based also failed to specify particular facts requiring closure.  Most importantly, the court found that the Creppy Memorandum was not “narrowly tailored.”  “The Government offers no persuasive argument as to why the Government’s concerns cannot be addressed on a case-by-case basis.”

 

Third Circuit: Closed Hearings

      In Philadelphia, the U.S. Court of Appeals for the Third Circuit came to the opposite conclusion in October 2002 in a case brought by various New Jersey media groups.  North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198 (3rd Cir. 2002).  Ruling 2 to 1, the appeals court found that the First Amendment right of access can apply to administrative proceedings like immigration hearings, but it must consider the “experience and logic” of allowing access to a particular type of proceeding before determining if the right actually does apply.

      Under this analysis, the court found that the “logic” of allowing access, which the Supreme Court has said depends on “whether public access plays a significant positive role in the functioning of the particular process in question,” does not mandate openness because of the negative effects access would have.

      While accepting that there are benefits from public access to these proceedings, the court found that “the Government presented substantial evidence that open deportation hearings would threaten national security.”  The court relied heavily on the testimony of an FBI counter-terrorism and counter-intelligence expert, who had promoted what is called the “mosaic” theory -- that almost any information about government action can be pieced together by terrorists to get a more complete picture of government investigations in order to circumvent anti-terrorism efforts.

      The court accepted without comment the government’s allegation that this precludes the possibility that closure orders can be made on a case-by-case basis, because that would signal to terrorists which type of “activities and patterns of behavior merit such closure.”

      The panel also found that the “experience” part of the test -- which examines the prior history of access to immigration hearings -- does not justify First Amendment access.  The court found that immigration proceedings have routinely been held at locations that were inaccessible to the public, such as hospital rooms and prisons.  In contrast, the right of access exists in the criminal context because of a centuries-long “unbroken, uncontradicted history” of access, the court found.

      In a dissent, Judge Anthony Scirica said he found that “experience and logic” show a long history of access to immigration proceedings and an important public interest served by such access.  In addition, the harms the government recites can be addressed through a case-by-case determination of the need for sealing orders, and do not merit a blanket prohibition on access, he said.

      The New Jersey groups petitioned the Supreme Court for certiorari on March 3, 2003.

      As a result of the split in the circuit courts, immigration judges in the Sixth Circuit’s region must make particularized findings in each case before they are allowed to close immigration hearings.  “Special interest” immigration hearings elsewhere in the country remain closed.

 

--Lucy Dalglish and Sara Thacker