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Last week, as a 3rd U.S. Circuit Court of Appeals panel refused to stay a judge’s order for public hearings for illegal aliens detained in secret after Sept. 11, the Immigration and Naturalization Service continued to keep the cases on hold while it pursues its appeal. The stalling tactic is prompting private lawyers for some of these “special interest” detainees to try to force the government’s hand. Newark, N.J., solo practitioner Regis Fernandez hopes to prompt the INS to hold open hearings for two detained Muslim men, Majdi Rawashdeh and Issam Rawashdeh, before the 3rd Circuit makes a decision. Fernandez’s attempt would be the first to test the May 28 ruling by Chief Judge John Bissell of the U.S. District Court for the District of New Jersey that keeping such hearings secret is, as he put it, “a clear case of irreparable harm to a right protected by the First Amendment.” On June 17, without opinion, 3rd Circuit Judges Julio Fuentes, Marjorie Rendell and Dolores Sloviter denied the government’s motion for a stay and for expediting the appeal in the case North Jersey Media Group v. Ashcroft, 02-967. The Law Journal is a party to the suit, which challenges a directive by Chief Immigration Judge Michael Creppy closing all special-interest hearings. Immigration attorneys say the halt in hearings is an apparent attempt by the INS to avoid tangling with Bissell’s ruling. Fernandez’s cases involve two Jordanian cousins, Majdi and Issam Rawashdeh, who entered the United States on March 22, 2002, on tourist visas. They had permission to stay until April 10, but remained illegally, working at a gas station on Route 17 in Paramus, N.J. Fernandez says the cousins had planned on making some money and then leaving. Finding the economy slow and the country’s welcome for Arab Muslims not as warm as they had hoped, they bought airplane tickets to Jordan with departure dates for July 2 and 25. Toward the end of May, however, the FBI visited their home in Paterson, N.J. “They said, ‘Someone here got a phone call from a terrorist, so one of you must be a terrorist. We’re going to be back, and when we come back we want to know who it is,’” says Fernandez. INS agents picked up the men June 5. They have been held in New Jersey’s Bergen County Jail on the Department of Justice’s special-interest list. The INS asserted in court papers that the two men are linked to the attacks on the Pentagon and World Trade Center and that federal agents will present information outlining the link in later deportation hearings. The INS did not, however, present evidence to back its assertion. Nor have the men been charged with any crimes. Fernandez says the lack of evidence indicates that his clients are not terrorists but are only guilty of immigration violations. Fernandez surmises that telephone calls to Germany, which the Rawashdehs had visited before coming to the United States, may have attracted the FBI’s attention. Some of the Sept. 11 hijackers used to live in Germany. And, since passage of the USA Patriot Act last year, the FBI has had greater powers to tap telephones of suspected terrorists. The INS scheduled removal proceedings for June 14. The day before, however, INS assistant district counsel Alan Wolf asked Immigration Judge Eugene Pugliese in Newark to halt proceedings or close them under new regulations published May 27 by Attorney General John Ashcroft. The rules, 8 CFR �� 3.27, 3.31 and 3.46, permit closed hearings if the government shows a “harm to national security or a law enforcement interest.” Fernandez says Wolf presented no such showing. Wolf did not return a call seeking comment, but his pleading says that Majdi Rawashdeh “was originally detained on information suggesting that he had connections to or possessed information on terrorist activity against the United States, in particular the September 11 attack and the individuals and organizations involved.” On June 14, Pugliese did not grant the INS a continuance, citing Bissell’s ruling. He scheduled a deportation hearing for June 17, the first special-interest hearing open to the public. The INS appealed to the Executive Office of Immigration Review in Falls Church, Va., on June 14. That afternoon, a flurry of hastily written briefs were faxed among the parties and the appellate tribunal. “The issues in this matter are of such significant national importance [that] … disclosure of that information to the public (and to terrorist organizations monitoring the government’s investigation) could cause immediate and irreparable harm,” Wolf’s brief says. In opposition, Fernandez notes that Wolf is unable to say whether the FBI has an interest in the two men, let alone criminal evidence against them. “It is the Service that initiated proceedings against the Respondent and thus should go ahead with the hearing … . There should be no reason for why the INS should be allowed to hold individuals in Israeli-style administration detention because it MAY bring criminal charges against them. As admitted aliens, the Respondents are at least entitled to due process. … [The respondents] thank the hospitality of this country but wish to no longer be subjected to its strange rules and procedures,” according to Fernandez’s brief. At 6:16 p.m. on June 14, the EOIR granted the stay of Pugliese’s ruling while considering the INS’ appeal. Fernandez believes Wolf originally sought the hearing believing the FBI would provide him with the requisite “law enforcement interest” to present to Pugliese. But “he doesn’t even have that,” Fernandez says. With Bissell’s ruling in effect, Fernandez says he believes the INS’ appeal is a stalling tactic in hopes that the 3rd Circuit will rule to close the hearings. The Rawashdeh cousins are two of 74 detainees in Florida, Michigan and New Jersey jails as of June 13, according to Justice Department filings. Eighteen are without counsel, the department says. The total number of men detained in secret on INS charges since Sept. 11 is 751. In April, deportation hearings were halted amid a week of confusion created by the New Jersey Appellate Division’s attempt to maintain the “status quo” during the appeal of a separate case, ACLU v. Hudson County, A-4100-01T5. Hearings were stopped, and deportees were dragged off planes at JFK International Airport in the INS’ attempts to comply with the judges’ order. In that suit, the American Civil Liberties Union of New Jersey is seeking the names of detainees under the state’s Right to Know Law. Judges Howard Kestin, Isaiah Steinberg and Edwin Alley eventually approved an agreement to allow hearings and deportations to continue pending the appeal. They later ruled that the state’s laws were superseded by federal regulations. The ACLU is awaiting a decision on its petition for certification to the New Jersey Supreme Court in that matter. In North Jersey Media Group v. Ashcroft, the Justice Department filed an appeal to stay the ruling to the U.S. Supreme Court Friday. Assistant Attorney General Robert McCallum’s office declined to comment.

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