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Debating the Rule of Law

Deportation Hearings—Should They Be Secret?

Adapted and reprinted from Molly McDonough, "Circuits Split on Deportation Hearings: First Amendment Argument Worked in Narrower Case," ABA Journal Ereport (October 10, 2002), courtesy of the ABA Journal.

The threshold question before two different federal appeals courts was the same: Is there a First Amendment right to attend deportation hearings?

One court said yes, and the other said no.

The decisions about whether relatives and the media should have access to hearings of those suspected of terrorism were at such odds that legal experts say the U.S. Supreme Court will eventually have to resolve the matter. "There's no way the two opinions can be squared with one another," said Newark lawyer Lawrence S. Lustberg, who represented New Jersey newspapers seeking access to the deportation hearings in one case.

The 2-1 ruling in that case by the Third U.S. Circuit Court of Appeals in Philadelphia held that blanket closure of special-interest deportation hearings is lawful. The decision directly conflicted with one made earlier by the Sixth U.S. Circuit Court of Appeals in Cincinnati—that deportation hearings can be closed only on a case-by-case basis. The decision in the Third Circuit reversed a preliminary injunction by U.S. District Judge John W. Bissell, who had ordered all deportation hearings open unless the government could show why secrecy was needed in a particular case.

Lee Gelernt, senior staff counsel for the American Civil Liberties Union Immigrants' Rights Project in New York, who argued both the Third and Sixth Circuit cases on behalf of newspapers, said that the scope of the injunctions in each case differed, but the First Amendment issue was the same. (In the Sixth Circuit case, the injunction was limited to a specific deportation case. The Third Circuit injunction was nationwide.) Lustberg attributed the different verdicts by the two circuit courts to the politics of the various judges rather than the specifics of the cases.

The Third Circuit's majority opinion stressed the looming terrorist threat to the United States. "We are keenly aware of the dangers presented by deference to the executive branch when constitutional liberties are at stake, especially in times of national crisis, when those liberties are likely in greatest jeopardy. On balance, however, we are unable to conclude that openness plays a positive role in special interest deportation hearings at a time when our nation is faced with threats of such profound and unknown dimension."

The Justice Department praised the ruling. The plaintiffs, however, are considering an appeal. "The Third Circuit was too quick to defer to government and the national security justifications it proffered," says Nancy Chang of the Center for Constitutional Rights in New York. "The court lost sight of the critical role that the press plays in ensuring the fairness of immigration proceedings and in maintaining the public perception that justice is being done."

The two cases followed Chief Immigration Judge Michael Creppy's administrative order closing all deportation hearings involving detainees of "special interest." Attorney General Ashcroft included in that category those who might have connections to the September 11 terrorist attacks. Detainees, politicians, and the media in Detroit and Newark then challenged the closures on the grounds they violated First Amendment access and Fifth Amendment due process.

According to the Justice Department, 763 people were detained on alleged immigration violations in the wake of September 11. That number dwindled, however, with most either released or deported. Lustberg, however, says that holding secret hearings means there's no way to know for sure how many individuals were detained and how many have been released.

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