Detroit Free Press v. Ashcroft: Michigan District Court Preliminarily Enjoins Closed Removal Hearings

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

DETROIT FREE PRESS, ET AL., V. ASHCROFT, ET AL.: MICHIGAN DISTRICT COURT PRELIMINARILY ENJOINS CLOSED REMOVAL HEARINGS
Immigrants' Rights Update, Vol. 16, No. 2, April 12, 2002

The U.S. District Court for the Eastern District of Michigan has issued a preliminary injunction prohibiting the government from continuing to hold closed removal hearings in the case of Rabih Haddad. Haddad's hearings had been closed to the public and the press as a "special interest" case pursuant to a memorandum issued by Chief Immigration Judge Michael Creppy (see "Chief Immigration Judge Issues Guidelines for Secret Removal Hearings," Immigrants' Rights Update, Dec. 20, 2001, p. 3). In a separate ruling, the court denied the government's motion to dismiss the cases on jurisdictional grounds. The rulings come in three lawsuits filed by the press, members of the public, and Haddad (see "ACLU Files Suit to Challenge Closed Immigration Hearings," Immigrants' Rights Update, Feb. 28, 2001, p. 14).

The government's motion to dismiss was based on a number of the permanent rules for judicial review enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The court examined each of the provisions relied upon by the government and concluded that none of them apply to this challenge. Thus, the government contended that section 242(d)(1) of the Immigration and Nationality Act, which provides that a court may "review a final order of removal" only where the noncitizen "has exhausted all administrative remedies," prevents challenges to removal proceedings except by judicial review of removal orders. The court rejected this contention because the errors challenged in this case—the closure of hearings by order of the chief immigration judge pursuant to authorization by the attorney general—could not be corrected by the Board of Immigration Appeals. Thus, there is no meaningful administrative remedy to exhaust. The court also noted that several circuits have found that statutory exhaustion requirements do not apply to challenges that are not concerned with the ultimate outcome of the removal case, such as the challenges by the press plaintiffs in this case.

The court also rejected the government's reliance on INA section 242(g), which restricts judicial review of "any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien." The government characterized the challenge to closed hearings as a challenge to the "adjudication" of the removal case. However, the court noted that the Supreme Court has rejected such a sweeping interpretation of section 242(g), in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999) (AADC). The court concluded that this provision does not bar this challenge because it is not a challenge to the attorney general's decision to adjudicate this case.

The court relied on the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001), to reject the government's claim that INA section 242(b)(9) bars this challenge. In St. Cyr the Supreme Court clarified that the purpose of section 242(b)(9) "is to consolidate 'judicial review' of immigration proceedings into one action in the court of appeals, but it applies only with respect to an order of removal." And the court found that INA section 242(b)(2)(B)(ii), which bars judicial review of determinations that are in the discretion of the attorney general, does not apply to procedural (as opposed to substantive) determinations, such as the decision to close removal hearings at issue in this case. For all of these reasons, the court denied the motion to dismiss.

With respect to the newspaper plaintiffs' motion for preliminary injunction, the court found that the plaintiffs were likely to prevail on the claim that the closure of the hearings violates their First Amendment rights of access. The court found that deportation hearings historically and traditionally have been open to the public and the press and that there is a public interest in having such openness. On the other hand, the court found that none of the interests offered by the government for the policy of closing hearings of "special interest detainees" justified closing Haddad's proceedings. Indeed, the only reasons offered by the government concerned possible dangers of disclosing the name, and date and place of arrest, of a special interest detainee, and in Haddad's case all of this information was public from the time of his arrest. Finding also that the plaintiffs would suffer irreparable harm unless an injunction issued, the court granted the plaintiffs' motion for a preliminary injunction.

The government has appealed, and on Apr. 11, 2002, the U.S. Court of Appeals for the Sixth Circuit issued a temporary stay of the district court's order.

Detroit Free Press, et al., v. Ashcroft, et al., No. 02-70339 (E.D.Mich. Apr. 3, 2002).