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Second Lawsuit Challenges Closed Immigration Hearings
by Carl R. Baldwin

The American Civil Liberties Union (ACLU) on March 6, 2002, filed a second lawsuit challenging the government's September 21, 2001 policy and practice of closing immigration hearings to the public and the press. The first suit was filed January 29 in the Eastern District of Michigan, this one was filed in the District of New Jersey. In each case the plaintiffs are news organizations, and the defendants are Attorney General John Ashcroft and Chief Immigration Judge Michael Creppy.

Ten days after the September 11, 2001, terrorist attacks, Michael Creppy, the Chief Immigration Judge, e-mailed a memorandum to all immigration judges. It advised them of new procedures implemented by the Attorney General: "Those procedures require us to hold the hearings individually, to close the hearing to the public, and to avoid discussing the case or otherwise disclosing any information about the case to anyone outside the Immigration Court." In a democratic nation that has always prized openness in administrative and judicial proceedings, this new rule was a shocker. The caption of the Creppy memorandum is "Instructions for cases involving additional security." The big problem for the aliens and their families, and for the press and the cause of civil liberties, is that, in practice, a great many immigration cases have suddenly been deemed to "involve additional security" and to require closure. Exceptions to this iron rule are hard to come by.

On December 7, 2001, William Glaberson wrote an article for the New York Times entitled "Closed Immigration Hearings Criticized as Prejudicial." On Judge Creppy's memorandum, Glaberson writes: "His action is provoking complaints that even as the country debates secret military tribunals, the administration has already closed an entire category of legal cases without giving critics a chance to challenge the order's constitutionality." Nadine K. Wettstein, legal director of the American Immigration Law Foundation, put it this way: "I appreciate that there's a lot of concern about the military tribunals, but it's speculative. But this is happening right now, and it's happening all over the country."

The ACLU complaint says this of Judge Creppy's memorandum: "The Creppy Memo requires closure in all cases selected by the Attorney General. It does not allow for an individualized determination of the reasons for closure in a particular case, nor does it allow for an individualized determination as to whether measures other than closure would serve the government's interests." The complaint alleges a First Amendment right to attend removal proceedings, and that the Creppy Memo violates that right "because it is not narrowly tailored to further a compelling interest in closure." The complaint further alleges violation of 8 C.F.R. 3.27, the regulation requiring that removal proceedings be open to the public unless the immigration judge orders closure "for the purpose of protecting witnesses, parties, or the public interest."

That regulation, indeed, sounds very different from the absolutism of the Creppy Memo. The Relief requested includes "A preliminary and permanent injunction prohibiting Defendants from closing any immigration proceedings in the absence of case-specific findings demonstrating that closure is narrowly tailored to serve a compelling government interest." The relief requested sounds eminently fair and sensible to me, and I hope that the sitting federal judge finds it so. David A. Martin, a former general counsel of the INS, made this important criticism of the new policy and practice of closure: "The rule of law operates best in public."

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be rached by e-mail at

He has written a book on immigration law, called "Immigration Questions and Answers," 1997, Allworth Press, 10 East 23rd Street, New York, NY 10010 (212) 777-8395. The book, which contains essential background information about how the immigration law works, can be ordered in both an English Edition and a Spanish version from