The Prevalence Of Closed Hearings, Secret Evidence, And Denial Of Access To Information — Troubling Trends In Recent Department Of Justice Directives
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.
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)
NEW JERSEY APPELLATE COURT DECISION UPHOLDING INTERIM RULE
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)
CLOSED HEARINGS BEFORE THE IMMIGRATION COURTS
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.
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 email@example.com.
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.
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