The Reporters Committee for Freedom of the Press today filed comments with the Executive Office for Immigration Review opposing an interim rule that allowed a relaxed standard for immigration judges to issue sealing orders and protective orders, keeping immigration court records secret from the public.
The Reporters Committee urged the Department of Justice and the Executive Office of Immigration Review to reconsider the interim rule and replace it with a rule that fulfills the constitutional requirements for sealing orders and protective orders as set forth by the U.S. Supreme Court and other federal courts. The interim rule does not provide for the constitutional protections currently required by federal courts.
The interim rule states that it is designed to “ensure that sensitive law enforcement or national security information can be protected against general disclosure, while still affording full use of the information by the immigration judges, Board of Immigration Appeals, the respondent, and the courts.”
As written, the proposed rule would permit a protective order where there is “a substantial likelihood that disclosure or dissemination will harm the law enforcement or national security interests of the United States.” The rule also allows INS judges to issue gag orders to prevent an immigrant from disclosing anything he has learned from the protected information.
The Reporters Committee comments argue that courts must apply a test of strict scrutiny to efforts to close judicial proceedings. “Even though immigration courts are part of an administrative agency, they must adhere to the same standards as Article III courts with regard to constitutional issues,” the committee wrote. “Immigration courts, therefore, may not issue sealing orders or protective orders without applying the strict scrutiny test first.” The interim rule proposes a less strict test, and is therefore flawed, according to the comments.