Proposed INS rule would seal files, close immigration courts

From the Summer 2002 issue of The News Media & The Law, page 46.

A new rule proposed by Attorney General John Ashcroft would allow pleadings before the Immigration and Naturalization Service to be filed under seal and would allow immigration judges to close proceedings when sealed materials were considered.

The rule went into effect on May 21 but could face revision following a recent public comment period.

The rule creates a new section to the Code of Federal Regulations authorizing INS judges to issue protective orders and accept documents under seal. It also amends an existing section to permit judges to close hearings when sealed information is considered.

The provision is designed to “ensure that sensitive law enforcement or national security information can be protected against general disclosure, while still affording full use of the information by the immigration judges, Board of Immigration Appeals, the respondent, and the courts.”

As written, the proposed rule would permit a protective order where there is “a substantial likelihood that disclosure or dissemination will harm the law enforcement or national security interests of the United States.”

The rule also allows INS judges to issue gag orders to prevent an immigrant from disclosing anything he has learned from the protected information. A part of the rule also provides that if either the immigrant or the attorney violates the order, the court may then deny all discretionary relief to the immigrant and the attorney may be barred from practicing before the immigration courts.

Opponents to the rule argue that any provision for protective or sealing orders must comply with the constitutional requirements used in ordinary courts. They say the public and press should be given notice and an opportunity to be heard on the issue, and a sealing order should be issued only if there are specific findings of fact that demonstrate a necessity for such an order.

They note, too, that the U.S. Supreme Court itself has determined that a presumption of openness governs the courts.

The proposed rule states that it “compliments” a directive issued by Chief Immigration Judge Michael Creppy on Sept. 21, 2001. The Creppy Memorandum directed all immigration judges to close all proceedings related to September 11 investigations.

That memorandum, however, was struck down by federal District Judge John W. Bissell in New Jersey. The court ruled that the INS could not enforce an across-the-board policy of closing all proceedings, and proceedings may be closed only if there are findings of fact indicating a necessity for closure.

The government appealed. The Supreme Court has issued a stay to prevent courts from opening immigration proceedings until after appeals are exhausted. (Interim Rule amending 8 CFR 3.27 and adding 8 CFR 3.46 to authorize immigration judges to issue protective orders and accept documents under seal.) — AG