This week a federal judge in New Jersey ruled that the government cannot close immigration proceedings without providing an individualized reason for doing so. The suit, brought by media organizations in New Jersey, where most of those detained in connection with the terrorism investigation are being held, sought an injunction to prevent the government from continuing to close immigration proceedings to the public, claiming that doing so violated their First Amendment rights.
The government’s first argument was that the court did not have jurisdiction to hear the case. It based this claim on provisions of the Immigration and Nationality Act that limit federal court jurisdiction over immigration cases. The judge, however, found these provisions inapplicable because they referred to review of deportation orders, or to challenges of INS decisions to commence proceedings, adjudicate cases, or execute deportation orders. Moreover, these rules apply to suits brought by the alien, and were not, the court found, applicable to the media organizations suing to protect their First Amendment rights. Finding that the court had jurisdiction, the judge then examined the merits of the case.
The government had filed a motion to dismiss the case because no claim that a court could adjudicate was presented. The standard for reviewing such motions to dismiss is whether, accepting all the stated facts as true and in the light most favorable to the plaintiff, it is clear the plaintiff will not win. To obtain a preliminary injunction, sought by the plaintiffs, the plaintiffs must show a reasonable probability of ultimate success, that they will suffer irreparable harm if the injunction is denied, that issuing the injunction will not cause greater harm to the party against whom the injunction is sought, and that granting the injunction is in the public interest.
The government argued that the plaintiffs’ First Amendment rights were essentially trumped by the government’s interests because the government has plenary power to regulate immigration. The court noted the well-established limit on this power, that it must be administered in a way that does not violate due process. The court found that closing proceedings was a procedural matter, not substantive, and that it must be done in a way that comports with due process.
The court also found a substantial history of cases holding that the First Amendment alone prohibits the government from closing judicial proceedings. The government made much of the fact that no court has ever found a First Amendment right of access to deportation proceedings, but the court found this unimportant. For the court, whether a proceeding should be open depends on whether it has historically been open to the public, and whether opening the proceeding promotes government openness.
In 1903, the Supreme Court held that due process must be observed in proceedings to remove a resident alien, and in 1964, regulations were passed that created a presumption that deportation proceedings should be open. The court found that not only were deportation proceedings historically open, logic required that they should be open. Deportation proceedings involve a government effort to affect a person’s liberty, and while they are not criminal proceedings, they are similar in form and the impact of the ultimate decision on the individual is just as great. These factors led the judge to conclude that the same concerns that lead to open civil and criminal hearings call for immigration proceedings to be open.
The government argued that open hearings would harm the ongoing terrorism investigation, and that revealing the names of those in proceedings would stigmatize them in the event they are cleared. These interests, the government argued, were so strong that all proceedings should be presumptively closed. This argument, the court found, was weakened by the fact that there is nothing to prevent the person in proceedings from going to the media. Moreover, once the case left the immigration courts and moved into the federal court system, the immigration proceedings would be made public. For this reason, and the fact that if sensitive information does have to be introduced in a public proceeding, it can easily be done in a judge’s chamber, the court found that presumptively closing proceedings went too far.
Based on this analysis, the court found the plaintiffs had established that they were likely to win the case, so the court examined the remaining requirements to obtain an injunction. Because of the nature of First Amendment rights, even a brief and minimal loss of those rights is considered to constitute irreparable harm, satisfying the second requirement. Since, even with closed proceedings, it is possible for the information to be made public, the court found that no damage to the government would occur if the injunction were issued. Finally, the court found that issuing an injunction would be in the public interest.
The full text of the opinion is available online http://lawlibrary.rutgers.edu/fed/html/ca02-967-1.html.
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