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Court affirms openness of immigration proceedings

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  1. Court Access

    NMU         SIXTH CIRCUIT         Secret Courts         Aug 26, 2002    

Court affirms openness of immigration proceedings

  • A federal appellate court ruled that the DOJ cannot unilaterally close all post-Sept. 11th deportation cases because democracy requires public oversight.

A federal appellate court ruled on August 26 that the automatic closure of all post-September 11th immigration proceedings was unconstitutional.

A three-judge panel of the U.S. Court of Appeals in Cincinatti (6th Cir.) ruled that the procedures followed by immigration courts since September 11th were unconstitutional because they 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.

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 a trial court order in a case involving Rabih Haddad, an immigrant who was detained after September 11th. His case was designated as “special interest” and the proceedings were closed. The closure was challenged by The Detroit News, The Detroit Free Press, and Rep. John Conyers.

In its opinion, 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” proceedings, they have substantial judicial characteristics and therefore the constitutional protections that are applied to judicial proceedings, such a 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 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, and the “Creppy Memorandum” on which the closure was based also failed to specify particular facts requiring closure. The Creppy Memorandum was a memo issued to all immigration courts on September 21, 2001, calling for the closure of “special interest” proceedings.

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.”

(Detroit Free Press v. Ashcroft; Media Counsel: Herschel P. Fink, Honigman Miller Schwartz & Cohn LLP, Detroit; Lee Gelernt, ACLU Foundation, New York) AG

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© 2002 The Reporters Committee for Freedom of the Press

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