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A federal judge, hearing attorneys clash over the closure of immigration hearings for Muslims arrested since Sept. 11, is exploring the outer limits of the judiciary’s power to police tribunals in other branches of government. At arguments May 13, Chief U.S. District Judge John Bissell of the District of New Jersey wanted to know whether and to what extent constitutional safeguards apply in immigration courts, which look very much like judicial courts but are in fact a subdivision of the Department of Justice. The DOJ argued for keeping the tribunals closed, saying immigration judges, formerly known as “special inquiry officers,” have always had the power to seal their proceedings. Civil rights lawyers pleaded for the hearings to be opened, arguing that the press has a First Amendment interest in covering trials and that the immigration courts have been open to the press for 40 years. At present, “not only are the proceedings secret, but the press can’t find out about it because the docket is secret,” said ACLU attorney Lawrence Lustberg, of Gibbons, Del Deo, Dolan, Griffinger & Vecchione in Newark, N.J. The suit, North Jersey Media Group v. Ashcroft, 02-967, stems from a memo e-mailed on Sept. 21 by Chief Immigration Judge Michael Creppy to all 258 judges of the DOJ’s Executive Office for Immigration Review, ordering new security procedures for certain cases after the terrorist attacks of Sept. 11. “These procedures require us to hold the hearings individually, to close the hearing to the public, and to avoid discussing the case [with] anyone outside the Immigration Court,” the memo said. Between November and February, reporters from the Law Journal and the Herald News of West Paterson were prevented from attending court sessions for several of the hundreds of Muslims charged with immigration violations. In March, the newspapers sued, together with the American Civil Liberties Union of New Jersey, alleging violations of the Constitution and departmental regulations. Initially, Bissell was more interested in how a similar case in Michigan, Detroit Free Press v. Ashcroft, 02-70339, differed from the case at hand. On April 3, U.S. District Judge Nancy Edmunds of the Eastern District of Michigan ordered that transcripts of a hearing for one detainee be released to the media. Lustberg said the two matters presented essentially similar issues, except that the Michigan case focused on a single detainee while the New Jersey matter challenges the entire secrecy mandate. Bissell also quizzed Lustberg on whether the Sept. 11 emergency might allow the government to carve out a narrowly tailored exception to a presumptive right of access. “The difference between these times and those times [pre-Sept. 11] is that compelling interest is more easily established,” Lustberg conceded before adding, “The events of Sept. 11 make it more imperative than ever that the press be allowed to cover these proceedings.” Bissell posed the opposite question to Michael Lindemann, the assistant director of the DOJ’s Office of Immigration Litigation: Why should immigration hearings be closed by blanket diktat for the first time in decades? Lindemann answered that the hearings are administrative and therefore the press does not have the same rights as in federal or state court. “We have not simply got a judicial proceeding here,” he said. This appeared to rouse Bissell, who asked whether Lindemann was proposing that the Bill of Rights did not apply to immigration courts because they are not courts created by Article III of the Constitution. Lindemann reminded Bissell that there are plenty of immigration proceedings to which the press lacks access, such as asylum and exclusion hearings. Furthermore, he pointed out, immigration judges historically were investigators as well as adjudicators. The judge then pitched Lindemann the example of a local zoning board hearing in Montclair, N.J. “Does that mean that because it isn’t so like a court proceeding that the press could be barred en banc from Montclair?” “You will not find the tradition here or the logic for an open process,” Lindemann replied, attempting to keep the debate focused on the immigration court. Bissell was keenly interested in whether a ruling in favor of media access would violate separation of powers, asking Lustberg, “Would this be an improper incursion by the courts into a matter confined to the executive branch?” Lustberg cited Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), in which the U.S. Supreme Court said, “One of the demands of a democratic society is that the public should know what goes on in courts by being told by the press what happens there.” But Richmond involved a criminal case, not an immigration hearing. That triggered Bissell to return to the zoning board scenario, which he admitted he drew from personal experience. A court could not direct the board’s decisions but could regulate its procedures. “My zoning board example may not be so bad after all,” he said. “It’s a terrific example, your honor,” Lustberg enthused, drawing laughter from the gallery, “and not just because it’s your example.” Lindemann struggled to keep the court looking at the big picture. He returned to the government’s “mosaic” theory, which it has repeatedly raised in much of the post-Sept. 11 civil-rights litigation. “What the mosaic theory addresses is the ability of a terrorist organization … to piece together the big picture” from small items of information released in many hearings, he said. The scope of the Creppy memo “is as narrow as it can be,” Lindemann said, noting that both he and the judge “lack the perspective necessary” to see what damage opening the hearings might do.

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