District Court Holds that Closed Immigration Hearings are Unconstitutional
On April 3, 2002, the U.S. District Court for the Eastern District of Michigan, Southern Division, held that the post-9/11 policy and practice of closing certain immigration hearings to the public and the press violated the constitution. This decision is a notable victory for openness in immigration proceedings in the tense and closed environment of the post-9/11 world.
The policy at issue in the lawsuit, Detroit Free Press, at al. v. John Ashcroft, et al., stemmed from a Memorandum issued by Chief Immigration Judge Michael Creppy on September 21, 2001, in the wake of 9/11. That Memo stated: “The Attorney General has implemented additional security procedures for certain cases in the Immigration Court. Those procedures require us to hold the hearings individually, to close the hearings to the public, and to avoid discussing the case or otherwise disclosing any information about the case to anyone outside the Immigration Court.” The complaint, requesting injunctive and declaratory relief, was filed January 29, 2002, by the American Civil Liberties Union (ACLU) on behalf of two Michigan newspapers and Congressman John Conyers, Jr. (D-Mich.).
The complaint focuses on the on-going removal hearings of Rabih Haddad, a national of Lebanon and co-founder of Global Relief Foundation, “a charitable relief organization which the U.S. government suspects may have ties to terrorism.” The complaint alleges that Mr. Haddad has resided off-and-on in the United States for more than twenty years as student, graduate student, and assistant Imam of the Islamic Center of Ann Arbor, Michigan. Mr. Haddad’s most recent nonimmigrant arrival was as a tourist in 1998. He applied for permanent residence under the LIFE Act in April, 2001, (the complaint does not tell us what the basis was for that application). The complaint alleges that it is usual INS practice not to place aliens under proceedings while applications for permanent residence are pending. But on December 14, 2001 Mr. Haddad was taken into custody as an overstay and removal proceedings were commenced. On the same day, according to an article in the Washington Post dated January 30, 2002, the government froze the assets of the Global Relief Foundation, which it suspects of having ties to Hamas. Mr. Haddad was kept in solitary confinement for over a month, but was released into the general prison population on January 19, 2002, following a visit to the prison by Congressman Conyers. According to the complaint, there is great concern in the Muslim community about this matter, and a desire on the part of the press and Congressman Conyers to attend Mr. Haddad’s removal hearings.
The decision, by Hon. Nancy G. Edmunds, starts by noting: “In the wake of the horrific events of September 11, 2001, the United States Government launched an extensive, broad-based investigation into the terrorist attacks and other potential threats to the United States citizens and interests. As part of that investigation, the Government has identified, questioned, and instituted removal proceedings against a number of non-citizens, primarily young men of Arab or Muslim background. These proceedings have been closed to the press and public.” As to the lawsuit, the court made this observation: “Although the structure of the Government’s argument is built on statutory interpretation, jurisdiction and administrative procedures, the subtext is all about the Government’s right to suspend certain personal liberties in the pursuit of national security.”
The court reviewed a long line of cases stressing the importance of opening proceedings to the public and the press, whether they be civil, criminal, or administrative. The court then applied the principle of these holdings to Mr. Haddad’s situation: “Haddad’s right to remain in the United States will be decided in these proceedings. It is important for the public, particularly individuals who feel that they are being targeted by the Government as a result of the terrorist attacks of September 11, to know that even during these sensitive times the Government is adhering to immigration procedures and respecting individuals’ rights. Openness is necessary for the public to maintain confidence in the value and soundness of the Government’s actions, as secrecy only breeds suspicion as to why the Government is proceeding against Haddad and aliens like him. And if in fact the Government determines that Haddad is connected to terrorist activity or organizations, a decision made openly concerning his deportation may assure the public that justice has been done.”
The court concluded that the blanket closure of removal proceedings in “special interest” cases is an unconstitutional violation of the plaintiffs’ First Amendment right of access to these proceedings. Lee Gelernt, the ACLU lawyer who argued the case for the plaintiffs, drew this conclusion: “This ruling sends a clear message that the role of the courts is more, not less, important in the aftermath of September 11.” This is especially true, in my opinion, because of the many harsh moves that the Attorney General has made against aliens since September 11, always with the justification of national security.
The court’s decision may be found at: http://www.ilw.comlawyers/immigrationdaily/cases/2002,0410-Freep.pdf
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 Carl.Baldwin@immigrationnewsmonthly.com.
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 www.amazon.com