The Supreme Court has not addressed the issue, and lower courts are split on whether immigration proceedings are presumptively open. For example, the court in Detroit Free Press v. Ashcroft, 303 F.3d 681, 700 (6th Cir. 2002) ruled that “[u]nder the two-part ‘experience and logic’ test from Richmond Newspapers, we conclude that there is a First Amendment right of access to deportation proceedings. Deportation hearings, and similar proceedings, have traditionally been open to the public, and openness undoubtedly plays a significant positive role in this process.” But the Third Circuit in North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 201 (3d Cir. 2002), found itself “in disagreement with the Sixth Circuit. In our view, the tradition of openness of deportation proceedings does not meet the standard required by Richmond Newspapers, or even its Third Circuit progeny.”
The Supreme Court has not addressed the issue. However, the Third Circuit in North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 201 (3rd Cir. 2002), stated: “In our view the tradition of openness of deportation proceedings does not meet the standard required by Richmond Newspapers, or even its Third Circuit progeny.” The Third Circuit found that it was far from clear that deportation proceedings were traditionally open and further found that there was a strong national security interest in shielding certain deportation proceedings from public access. Id. at 203.
Congress’ enactment of 8 U.S.C. § 1367 certainly supports that there is a compelling interest in preventing disclosure of certain information related to U Visa applications. Gonzalez v. Jaddou, No. 4:18-CV-131-BO, 2021 WL 3686931, *3 (E.D.N.C. Aug. 18, 2021).
In Detroit Free Press v. Ashcroft, the Sixth Circuit decided the question of “whether the First Amendment affords the press and public a right of access to deportation hearings.” 303 F.3d 681, 694 (6th Cir. 2002). A directive from the chief immigration judge ordered closure of all deportation proceedings in “special interest” cases, generally related to terrorism, and also restricted release of information regarding the matter, including “‘confirming or denying whether such a case is on the docket or scheduled for a hearing.’” Id. at 683–84. Applying the Richmond Newspapers “experience and logic” test, the court held that there was a First Amendment presumptive right of access to deportation proceedings. Id. at 700.
On the experience prong, the court addressed “whether this inquiry requires a significantly long showing that the proceedings at issue were historically open, such as a common law tradition.” Id. The court held that “although historical context is important, a brief historical tradition might be sufficient where the beneficial effects of access to that process are overwhelming and uncontradicted.” Id. at 701. The court did caution: “‘[a] historical tradition of at least some duration is obviously necessary, … [or] nothing would separate the judicial task of constitutional interpretation from the political task of enacting laws currently deemed essential.’” Id. (quoting In re The Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1332 (D.C. Cir. 1985 (Scalia, J.)).
In regards to deportation hearings specifically, the court found that “deportation proceedings historically have been open,” pointing to federal regulations that made them presumptively open and Congressional action that closed another type of immigration proceeding. Id. at 701. The court rejected the government’s argument that these were merely administrative proceedings to which there was no common law right of access, explaining that courts must look at more than labels and should instead “look to proceedings that are similar in form and substance” when deciding the experience prong. Id. at 702. Here, the deportation hearings “‘walk, talk, and squawk’ very much like a judicial proceeding.” Id. As a result, the Court found that the experience prong supported a presumptive right of access under the First Amendment.
The court reached the same conclusion on the “logic” prong. “Public access undoubtedly enhances the quality of deportation proceedings” for many of the same reasons that supported the holding in Richmond Newspapers. Id. at 703.
In applying strict scrutiny to the presumptively open deportation proceedings, the court found that the government’s “ongoing anti-terrorism investigation certainly implicates a compelling interest,” but the closure “directive is neither narrowly tailored nor does it require particularized findings.” Id. at 705.
In reaching its holding, the court rejected the government’s argument that the Richmond Newspapers line of cases did not apply to deportation proceedings because they were administrative proceedings to which “the more deferential standard” in Houchins v. KQED, Inc., 438 U.S. 1 (1978), applied. Ashcroft, 303 F.3d at 674. In addition, the Sixth Circuit rejected the government’s argument that it could “implement any non-substantive policy infringing upon [the right of access] if it is ‘facially legitimate and bona fide.’” Id. at 686 (quoting Kleindeinst v. Mandel, 408 U.S. 753, 770 (1972)).
Immigration proceedings are generally held before a federal immigration judge and subject to federal laws and rules of court. See 8 U.S.C. § 1229(a)(3) (“Unless otherwise specified in this chapter, a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States.”). Such proceedings are presumed open, with exceptions including proceedings concerning an abused alien spouse or child. 8 C.F.R. § 1003.27.
However, an immigrant child may petition a state court to be adjudicated dependent as a basis to then petition for federal immigration status as a special immigrant juvenile. See, e.g., In re T.J., 59 So. 3d 1187 (Fla. 3d DCA 2011). Such state court proceedings are subject to the rules for dependency proceedings outlined above. See Section VIII.B.
New Mexico courts have not spoken on whether immigration proceedings are presumptively open. Due to the New Mexico statute that deems all courts of New Mexico open to the public and that only excludes courts specified in the New Mexico Children’s Code and other similar laws that bar the public, however, it is likely that immigration proceedings are considered open. See NMSA 1978, § 34-1-1.