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The Prevalence Of Closed Hearings, Secret Evidence, And Denial Of Access To Information — Troubling Trends In Recent Department Of Justice Directives
by Cyrus D. Mehta and Parastou Hassouri

On April 17, 2002, an Interim Rule pertaining to the “Release of Information Regarding Immigration and Naturalization Service Detainees in Non-Federal Facilities” went into effect. This rule (hereinafter “Interim Rule”), published in the Federal Register, Vol. 67, No. 77 (April 22, 2002) governs the public disclosure by any state or local government entity or by any privately operated facility of the name or other or other information relating to any detainee in INS custody. Specifically the Interim Rule states that any state or local government entity or privately operated detention facility (hereinafter “non-Federal providers”) housing INS detainees shall not release information relating to those detainees, and that any requests for public disclosure of such information shall be directed to the INS.

The stated purpose for the Interim Rule is to establish a uniform policy on the public release of information on INS detainees and to ensure the INS’ ability to support the law enforcement and national security needs of the United States.

The Interim Rule is seen as within the scope of authority delegated to the Attorney General under the Immigration and Nationality Act (hereinafter “INA”) § 103(a)(3), which charges the Attorney General “with the administration and enforcement” of “all laws relating to the immigration and nationalizing of aliens,” and the establishment of “such regulations as he deems necessary for carrying out his authority.” The Interim Rule is also seen as consistent with the United States Supreme Court’s recognition that in matters related to aliens and immigration, the Federal government and Federal law play a preeminent role. See e.g. INS v. Aguirre-Aguirre, 526 U.S. 422, 424, 425 (1999) (“judicial deference to the Executive Branch is especially appropriate in the immigration context”).

The notice in the Federal Register also explicitly states that the Interim Rule supercedes State or local law relating to the release of such information.


Significantly, the Interim Rule was promulgated just five days after a trial court in New Jersey had ordered the Wardens and Custodians of Records of the Hudson County Correctional Center and the Passaic County Jail to make certain disclosures pertaining to detainees held in these facilities, pursuant to long-standing contracts between the INS and the counties. (Added 7/25/02)

In the wake of the attacks of September 11, and in connection with an investigation into the attacks, it is estimated that more than 1,000 individuals were questioned in connection with the attacks and possible future terrorist activity. Hundreds, who may not have had any connection whatsoever to terrorism, but were otherwise determined to be in violation of federal immigration law, have been placed in INS custody and detained in various facilities. The exact number is unknown, and neither have the names of the detainees been released. (Added 7/25/02)

The American Civil Liberties Union of New Jersey ("ACLU-NJ") brought an action against the Wardens and Custodians of Records of the two New Jersey facilities, alleging that the counties' refusal to make available to them public records for inspection and copying as required by New Jersey state law. 1 The trial court ruled in favor of the ACLU-NJ, finding that the statutes in question required the defendants to make the disclosures sought because the INS detainees were plainly inmates of those facilities. (Added 7/25/02)

The defendants appealed and as stated above, five days after this hearing, the INS promulgated the Interim Rule that prevents "non-Federal providers" from disclosing any information relating to INS detainees. This Interim Rule and its validity became the focus of the appeal. (Added 7/25/02)


In American Civil Liberties Union of New Jersey, Inc. v. County of Hudson, 2002 WL 1285110 (N.J.Super.A.D.), the Superior Court of New Jersey reversed the lower court, and found that the Interim Rule preempts and supercedes state law and consequently forbids disclosure of the requested information. (Added 7/25/02)

The plaintiffs made several arguments against the validity of the Interim Rule: that promulgation of the Interim Rule exceeded the INS' authority and that the rule is invalid as the notice, publication, and comment procedures mandated by the federal Administrative Procedure Act ("APA"), 5 U.S.C.A. § 553 were not followed; that the retroactive application of the Interim Rule is invalid; and that the Interim Rule violates state autonomy under the Tenth Amendment to the United States Constitution. 2 (Added 7/25/02)

The New Jersey Superior Court rejected all those arguments. First, it found that the pre-emption doctrine, which is rooted in the Supremacy Clause of Article IV of the United States Constitution, applies in this case, as there is a clear conflict between state law and the federal regulation, and that compliance with both is impossible. See id. at 12-13. Second, the Court found that the in promulgating the Interim Rule, the Commissioner of the INS did in fact act within his broad scope of authority to regulate all matters pertaining to immigration and naturalization. See id at 13. Third, the Court found that although the Interim Rule may not have been promulgated in compliance with customary APA procedures 3, the provisions for post-promulgation public comments fall within the "good cause" exceptions found at 5 U.S.C. §§ 553(b)(B) and (d)(3) 4. Specifically, the Court found reasonable the INS' justification for immediate promulgation-"the need to conceal investigative methods, protect detainees from retaliation, encourage detainees to provide valuable information, and further the investigation arising out of the September 11 attacks." Id. at 17. (Added 7/25/02)

On the issue of retroactive application, the Court noted that the Interim Rule specifies that it "applies to all requests for public disclosure of information relating to any detainee, 'including requests that are the subject of proceedings pending as of April 17, 2002.'" Id. at 19. The Court added, "[i]t has long held that if, subsequent to judgment but before the decision of an appellate court, a law intervenes to change the rule which governs, that law must be obeyed." Id. (citing United States v. The Schooner Peggy, 5 U.S. 103, 110 (1801)). Consequently, the Court found that the regulation is applicable to this case, as well. Lastly, on the issue of whether the Interim Rule violates the Tenth Amendment 5, the Court found that although the state possesses sovereign authority over the operation of its jails, when it comes to INS detainees, those jails may not be operated in any way that conflicts with the federal government's interest in regulating aliens-an interest that has been expressly delegated to Congress. See id. at 21. (Added 7/25/02)

Consequently, the Interim Rule has been upheld. The Court decision essentially turns on the issue of preemption. However, the decision fails to address a number of rather important questions. For instance, in finding that Congress has plenary power over immigration matters, the court fails to make the distinction between substantive issues and the procedures that may be used to implement those substantive decisions. This distinction is an exceedingly important one made time and again by the U.S. Supreme Court. See e.g. Zadvydas v. Davis, 533 U.S. 678 (2001); INS v. Chadha, 462 U.S. 919 (1983); Galvan v. Press, 347 U.S. 533 (1954). (Added 7/25/02)

Furthermore, the court failed to address the issue of whether the Interim Rule violates the First Amendment of the Constitution, which should require the government to justify its secrecy by showing that the Interim Rule is narrowly tailored to serve a compelling governmental interest. Lastly, as the Interim Rule prevents the disclosure of names of detainees and information as to whether a detainee is represented by counsel, it seriously impedes the detainees' access to legal representation. (Added 7/25/02)


Another subject of debate has been the fact that in the immediate aftermath of September 11, Chief Immigration Judge Michael Creppy issued a memorandum addressed to all Immigration Judges and Court Administrators, informing them that the Attorney General has implemented additional procedures for cases in the Immigration Court. These “special interest” cases are to be held individually, are to be closed to the public (including family) and that any discussion of the case to anyone outside the Immigration Court is prohibited. The closed nature of these “special interest” proceedings has, not surprisingly, been the subject of litigation.

The case of North Jersey Media Group, Inc. v. Ashcroft, 2002 WL 1163637 (D.N.J.), involves one such challenge. The plaintiffs, publishers of two daily newspapers serving the northern New Jersey area and a weekly newspaper covering law and public affairs, brought an action challenging the Interim Rule which denied them a right of access to certain deportation proceedings—a right claimed to be protected by the First Amendment of the U.S. Constitution.

Upon the publishers’ motion for preliminary injunction and the government’s cross motion to dismiss, U.S. District Chief Judge John Bissell held that the Court had jurisdiction to hear the claim; that the plaintiffs had demonstrated a reasonable likelihood of success on the merits of their First Amendment claim; and that the publishers demonstrated irreparable harm to a right protected by the First Amendment, and that the harm caused to the government would not outweigh the value achieved by enjoining a practice that violated the Constitution.

The Court acknowledged that while Congress has plenary authority over substantive immigration policy, it has been established that the power must be administered in a manner that respects the procedural safeguards of due process. See Kleindienst v. Mandel, 408 U.S. 753 (1972).

The Court then turned to the question of whether there exists a right of public access to deportation proceedings protected by the First Amendment. In concluding that the plaintiffs demonstrated a likelihood of success on the merits of the First Amendment claim, the court adopted the standard set forth in the case Richmond Newspapers, Inc. V. Virginia, 448 U.S. 555 (1980) and its progeny. In that case, the U.S. Supreme Court was asked to decide “whether a criminal trial itself may be closed to the public upon the unopposed request of a defendant, without any demonstration that closure is required to protect the defendant’s superior right to a fair trial, or that some other overriding consideration requires closure.” Id. at 564. The Supreme Court concluded that notwithstanding that no constitutional provision expressly guaranteed a public right of access to judicial proceedings, the freedoms guaranteed by the First Amendment shared a “common core purpose of assuring freedom of communication on matters relating to the functioning of government.” Id. at 575.

The Court then noted that since the Richmond Newspapers case, a working standard has evolved on this question, most elaborately detailed in the case Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9 (1986). There, the Supreme Court determined that the existence of a First Amendment right to access judicial proceedings turns on the complementary considerations of experience and logic—whether there is a “tradition of accessability” attendant to a given place and process. Id. at 8. Second, whether public access plays a significant positive role in the functioning of the particular process in question. If both are present, then a First Amendment right to public access attaches with respect to the particular proceeding. Id. at 9.

Taking the above-test into account, the Court concluded that there is a history of openness in deportation proceedings that points favorably toward finding a public right of access. For instance, in 1903, in the Japanese Immigrant Case, 189 U.S. 26 (1903), the U.S. Supreme Court held that due process rights attach to proceedings to remove a resident alien, the touchstone of which is the right to an open hearing. Furthermore, since 1964, federal regulations have expressly provided a presumption of openness for deportation proceedings. See 8 C.F.R. § 242.16(a) (1964); 8 C.F.R. § 3.27 (2002). As far as the “logic” prong of the test is concerned, the Court found that to be present as deportation proceedings “inherently involve a governmental process that affects a person’s liberty interest” and “the ultimate individual stake in these proceedings is the same as or greater than in criminal or civil actions.” In addition, the Court pointed to the fact that there exist abundant similarities between deportation proceedings and judicial proceedings in the criminal and civil contexts, leading to the inexorable conclusion that the “same functional goals served by openness in the civil and criminal judicial contexts would be equally served in the context of deportation proceedings.”

Lastly, the Court found that in order for the government to prevail, it must show that the restriction of public access is narrowly tailored to serve a compelling governmental interest. The government’s asserted interests were described as: avoidance of setbacks to the terrorism investigations caused by open hearings; and prevention of stigma or harm to detainees that might result if hearings were open. Noting that if an appeal is taken, the transcript of the below proceedings would nevertheless be disclosed, the Court concluded that the dictates are not narrowly tailored to serve the government’s interests because they do not advance those interests. Also, to the extent that the closure of the proceedings is said to serve the interest of insulating the detainee from humiliation or stigma, its mandate sweeps too broadly because it does not permit the individual to elect such protective treatment.
The government appealed to the Third Circuit Court of Appeals, seeking a stay of the District Court's order. The Third Circuit Court of Appeals has agreed to review the decision, but did not issue the stay. The government then turned to the U.S. Supreme Court, which without comment, granted the government's emergency request for a stay. (Added 7/25/02)

The DOJ directives approving the use of secret evidence, the closure of hearings, and the denial of public access to information regarding the names and whereabouts of hundreds of detainees are in direct contradiction to the openness that is the hallmark of a democratic society and a fair judicial system. Although some of the litigation being waged in this area has been successful, it is unclear what the ultimate outcome of these cases will be. Unfortunately, history has shown- for example, in the case of the internment of Japanese-Americans after the attacks on Pearl Harbor(added 7/25/02)- that in times that are deemed to be times of “national crisis,” the judicial system has not always stepped up to protect the due process rights that are guaranteed to all persons within the United States, not just its citizens. It is hoped that history will not repeat itself in the name of national security. (Added 7/25/02)

1 The laws in question are the so-called "Right to Know Law", N.J.S.A. 47:1A-1 to -13, and the so called "Jailkeeper's law", N.J.S.A. 30:8-16, as well as a public records provision of the Department of Corrections regulations governing adult correctional facilities, N.J.A.C. 10A_31-1.1 to -29.1.
2 The plaintiffs also argued that international law supports a grant of the relief they request, but the court did not address any of the claims raised under international law, finding that they were not properly raised or developed. See id at 6.
3 The Interim Rule was effective immediately upon signing. Notice of rule making was not published in the Federal Register, nor was the public afforded a comment period as required by 5 U.S.C.A. §§ 553 (b) and (c).
4 Subsection (b)(B) provides that the general notice requirement does not apply "when the agency for good cause finds (and incorporates the finding and brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." Further, subsection (d)(3) states that publication or service can be accomplished in less than the required 30 days as "provided by the agency for good cause found and published within the rule."
5 The Tenth Amendment provides that "[t]he powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people."

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or

Parastou Hassouri is an associate attorney at the Law Offices of Cyrus D. Mehta. She received her J.D. from the University of Pittsburgh School of Law in 1999. Prior to joining the firm, she served as a Judicial Law Clerk with the Executive Office for Immigration Review, New York City Immigration Court.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.