Two federal appeals courts came out with differing opinions in separate ACLU lawsuits opposing secret immigration hearings. The conflict between the circuit courts heightens the potential that the issue will end up before the United States Supreme Court.
Pursuant to a memo from the Chief Immigration Judge of the United States (the "Creppy Memo"), all post-911 "special interest" immigration hearings are not permitted to be held in open court and are not even listed on the court dockets. ("Special interest" cases are those in which the detainee in question has not yet been cleared of connections to terrorism by the FBI.) Previously, immigration judges were permitted to determine on a case-by-case basis whether security or other reasons would require a case to be closed to the public, with a presumption in favor of open hearings.
The ACLU is involved in two separate court challenges to the Creppy Memo. On March 25, 2002, the ACLU-NJ, along with the national ACLU, filed a lawsuit in federal district court on behalf of two newspapers that attempted to attend immigration hearings but were denied entry. The lawsuit, North Jersey Media Group, et al., v. Ashcroft, et al., challenges the Creppy Memo on First Amendment ground. We argue that the government cannot impede upon the long-standing history of openness in court proceeding, including immigration proceedings, and that the blanket non-disclosure requirement (as opposed to the case-by-case determinations) was not a narrowly tailored means of furthering the government's interests.
The same argument was made by the ACLU in Detroit Free Press, et al. v. Ashcroft. The difference between the two cases is that the Detroit Free Press case focuses on one particular immigration detainee's hearings whereas the media in North Jersey Media Group seek access to any and all hearings.
District Court judges in both cases sided with the ACLU. However, in North Jersey Media Group, the government sought and obtained a stay of the judge's decision from the United States Supreme Court. Therefore, while the appeals were pending, immigration hearings could proceed in secret.
On August 26, a three-judge panel of the Sixth Circuit Court of Appeals in Cincinnati unanimously struck down the Creppy policy in the Detroit case, saying, in a much-quoted decision, that "Democracies die behind closed doors." On October 8, 2002, the Third Circuit Court of Appeals, in a 2-1 decision, ruled in favor of the government. The majority stated that, unlike criminal or civil court hearings, there was no history of immigration hearings being open to the public.
On October 24, the government filed for a rehearing of Detroit Free Press before the entire Sixth Circuit. If their motion for a rehearing is denied, the government will have to either accept the decision in that case or file a petition for certiori to the United States Supreme Court. The ACLU requested a rehearing before the entire Third Circuit in the North Jersey Media Group case, but it was denied. We are presently considering whether to appeal this case to the U.S. Supreme Court.
In additional post-9/11 litigation, the ACLU's lawsuit seeking the names of all INS detainees arrested after September 11, 2001 pursuant to the Freedom of Information Act is now pending before the a circuit court in Washington, D.C. The lower court judge in the case had ordered that the names of the detainees should be released; however, the judge stayed her decision pending appeal. Oral argument in the appeals court was heard on November 18, 2002. In a prior lawsuit, the ACLU-NJ sought the names, under New Jersey law, of all detainees held New Jersey jails (which constituted the vast majority of all post-9/11 detainees). After a Superior Court judge sided with the ACLU and ordered the Hudson and Passaic County jails to release the names, the INS adopted an emergency regulation prohibiting the release of names and locations of any and all detainees. The regulation specifically stated that it overrode all state law to the contrary. The ACLU-NJ challenged the legality of the regulation; however, the Appellate Division ruled that the regulation was permissible. The New Jersey Supreme Court refused to hear the case and no further appeal was taken.