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Federal panel finds no right of access to special immigration proceedings

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  1. Court Access

    NMU         THIRD CIRCUIT         Secret Courts         Oct 8, 2002    

Federal panel finds no right of access to special immigration proceedings

  • The Third Circuit’s decision sets up a conflict in the federal circuits on the question of access, which can only be resolved by the Supreme Court.

The First Amendment does not guarantee a presumptive right of access to “special interest” immigration proceedings, a split panel of the U.S. Court of Appeals in Philadelphia (3rd Cir.) held today.

The 2-1 decision creates a split in the circuits that can only be resolved by the U.S. Supreme Court. The Sixth Circuit ruled in August that the right of access does apply to such immigration proceedings, although sealing orders can always be used on a case-by-case basis to keep sensitive information from the public.

The Third Circuit 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 positive benefits to 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 counterterrorism and counterintelligence expert, who had promoted what is called the “mosaic” theory — the allegation that almost any information about government action can be pieced together by terrorists to get a more complete picture of government investigations, and use this information 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 that 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 warns of can be addressed through a case-by-case determination of the need for sealing orders, and do not merit a blanket prohibition on access.

In contrast to the Third Circuit’s ruling, the Sixth Circuit panel’s August opinion emphasized the importance of openness in “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.”

(North Jersey Media Group, Inc. v. Ashcroft; Media counsel: Lee Gelernt, ACLU, New York) GL

© 2002 The Reporters Committee for Freedom of the Press

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