Letter to the INS Director on the Release of Information Regarding Immigration and Naturalization Service Detainees in Non-Federal Facilities

Director
Regulations and Forms Service Division
Immigration and Naturalization Service
425 I St., NW, Room 4034
Washington, DC  20536

Re: INS No. 2203-02

Interim Rule, ""Release of Information Regarding Immigration and Naturalization Service Detainees in Non-Federal Facilities""

On behalf of the American Civil Liberties Union, we are writing to you to express our strong opposition to the interim rule issued by the Commissioner of Immigration and Naturalization (the ""Commissioner""), published at 67 Fed. Reg. 19508-11 (Apr. 22, 2002), prohibiting state, local and private facilities from the releasing information regarding Immigration and Naturalization Service (INS) detainees in their facilities.  We urge that the interim rule be immediately rescinded.

We oppose the rule because it exceeds the Attorney General's authority, as delegated to the Commissioner, under the Immigration and Naturalization Act (INA), because it was promulgated in violation of the Administrative Procedure Act (APA), and because it continues and expands a policy of secret detentions that is itself unconstitutional and has also shielded the government from accountability for its unconstitutional actions.

As Alexander Hamilton made clear in the Federalist papers more than two centuries ago, a policy that allows ""confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten"" is a ""dangerous engine of arbitrary government.""[1]  It is wholly contrary to our democratic system.  

To ensure that freedom is not a victim of the nation's war on terrorism, the secret detention policy must be reversed.

I.          The Interim Rule Is Invalid Because It Exceeds the Attorney General's Authority Under the Immigration and Naturalization Act

The rule exceeds the Attorney General's authority under the Immigration and Naturalization Act (the ""INA"" or the ""Act"").  The Act's general authority to implement the immigration laws and to arrest and detain non-citizens for immigration violations does not authorize the federal government to engage in secret detentions, much less to require that a State implement, in contravention of its own laws, a policy of secret detentions.  Such a policy treads on fundamental constitutional values and would, at a minimum, require a clear statement from Congress.

A.        The Attorney General's General Authority Over Immigration and Detention Does Not Permit Him to Adopt a Policy of Secret Detentions, Much Less Force the States to Do So

As authority for the interim rule, the preamble cites the Attorney General's general authority to enforce the immigration laws, to detain persons alleged to be present in violation of the immigration laws, and to make such regulations as are necessary to carry out this authority.  See INA §§ 103, 236, 241, 8 U.S.C. §§ 1103, 1226, 1231.  However, because the interim rule authorizes a policy of secret detentions, and imposes that constitutionally questionable policy on the States in defiance of their own laws, the rule treads on fundamental constitutional values, including the First Amendment, the Due Process Clause, and principles of federalism.

It is well established that ""if an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is 'fairly possible,' we are obligated to construe the statute to avoid such problems.""  INS v. St. Cyr, 533 U.S. 289, 299-300 (2001) (internal citation omitted).  Construing the general provisions of the INA cited above as a license to engage in secret detentions would raise such ""serious constitutional problems."" 

The First Amendment gives the press a right of access to legal proceedings, and the Due Process Clause protects an accused person's right to a public legal proceeding.  See Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).  This right of access and to a public hearing is not limited to criminal trials, but also extends to civil cases and quasi-judicial administrative proceedings, including immigration hearings.  See Brown & Williamson Tobacco Co. v. FTC, 710 F.2d 1165 (6th Cir. 1983) (civil proceeding); Fitzgerald v. Hampton, 467 F.2d 755 (D.C. Cir. 1972) (Civil Service Commission hearing); Soc'y of Prof'l Journalists v. Sec. of Labor, 616 F. Supp. 569 (D. Utah 1985) (Mine Safety and Health Administration investigative hearing); Pechter v. Lyons, 441 F. Supp. 115 (S.D.N.Y. 1977) (deportation hearing).  

The purpose of the rule affording access to legal proceedings, including immigration hearings, is to further ""a public policy centuries old that judicial proceedings, especially those in which the life or liberty of an individual are at stake, should be subject to public scrutiny . . . .""  Pechter, 441 F. Supp. at 117-18.  The purpose of public scrutiny is twofold - both to ""protect the accused"" and to ""protect as much the public's right to know what goes on when men's lives and liberty are at stake . . . .""  Id. at 118 (quoting Lewis v. Peyton, 352 F.2d 791, 792 (4th Cir. 1965)).  These rights are not suspended in cases alleged to have some connection to terrorism.  In cases involving the question of secret immigration hearings since September 11, two federal district courts have rejected the arguments made by the government to close the hearings, affirming the public's right of access to immigration hearings under the First Amendment.  See North Jersey Media Group v. Ashcroft, 2002 WL 1163637 (D.N.J. May 28, 2002), government mtn. for stay pending appeal denied sub nom. North Jersey Media Group v. Attorney General, No. 02-2524 (3rd Cir. June 17, 2002); Detroit Free Press v. Ashcroft, 195 F. Supp.2d 937 (E.D. Mich. 2002), government mtn. for stay denied, No. 02-1437 (6th Cir. Apr. 18, 2002).

Closely related to the longstanding tradition of openness in judicial proceedings, protected by the First Amendment, are polices and laws that prohibit the possibly even more troubling practice of secret arrests.  ""The requirement that arrest books be open to the public is to prevent any 'secret arrests,' a concept odious to a democratic society . . . .""  Morrow v. District of Columbia, 417 F.2d 728, 741-42 (D.C. Cir. 1969).  If the government lacks the power under the First Amendment to close immigration hearings, keeping secret such basic information about detainees as the regulation intends to shield at least raises ""serious constitutional questions"" under both the First Amendment and the Due Process Clause.

Finally, principles of federalism strongly counsel against interpreting the INA to permit the federal government to impose such a constitutionally questionable policy on the States, particularly where the State's own legislature has rejected such a policy.  As the Supreme Court held in Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991) (quoting Will v. Mich. Dept. of State Police, 491 U.S. 58, 65 (1989) (internal citations omitted)): ""If Congress intends to alter the 'usual constitutional balance between the States and the Federal Government,' it must make its intention to do so 'unmistakably clear in the language of the statute.'""  As the Court explained: ""This plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.""  Gregory, 501 U.S. at 461.  This axiom -- invoked successfully by then-Governor Ashcroft -- should apply with equal vigor to now-Attorney General Ashcroft.  Requiring state officials to engage in secret detentions of inmates in a manner contrary to state law would ""alter the 'usual constitutional balance between the States and the Federal Government,'"" Id. at 460-61 (internal citations omitted), requiring explicit Congressional approval.[2] 

Whether or not a secret detentions rule, if authorized by Congress, would violate the Constitution, at the very least it requires a plain statement from the Congress.  No such plain statement can be found in the general language of the INA empowering the Attorney General to enforce the immigration laws.

B.         Provisions of the INA Governing INS Records and Housing of INS Detainees Do Not Authorize the Interim Rule

In addition to citing the Attorney General's general authority to enforce the immigration laws and to detain aliens, the preamble cites provisions of the INA concerning the keeping of INS records and the authority of the Attorney General to contract with state, local and private facilities to house INS detainees and also cites provisions of Title 18 permitting such contracting to house other federal prisoners.  See INA § 103(a)(2) and (a)(9)(A), 8 U.S.C. § 1103(a)(2) and (a)(9)(A); see also 18 U.S.C. § 4002, 4013(a)(4).  These specific provisions do not authorize the preemption of state authority concerning the release of information about federal prisoners in state custody.

The provisions of the INA giving the Attorney General control of the records ""of the Service"" plainly have no application to state records.  Nor can the records be considered federal records simply because they concern detainees housed at the expense of the federal government.  In Forsham v. Harris, 445 U.S. 169, 180 (1980), the Supreme Court squarely addressed the issue of whether records maintained by a private health organization were federal documents subject to the reach of the Freedom of Information Act (FOIA), 5 U.S.C. § 552.  The Court held that the documents maintained by the organization were not federal documents subject to the FOIA, even though the agency that was entirely funded by the federal government.  By contrast, federal funds pay for only some bed space for individuals in local jails; INS inmates represent only a small percentage of the total jail populations.  Moreover, as in Forsham, the federal agency involved in this case (the INS) has contractually chosen to exercise virtually no supervision over the activities of local jails housing INS detainees. Thus, the records maintained by the jails are not federal records.  The Attorney General cannot by regulation prohibit access to state records pursuant to state law.

Likewise, provisions permitting voluntary contracts with non-federal entities to house immigration detainees do not authorize the preemption of state right-to-know laws.  INA § 103(a)(9)(A), 8 U.S.C. § 1103(a)(9)(A), empowers the Attorney General to arrange for ""the housing, care, and security of persons detained by the Service pursuant to Federal law under an agreement with a State or political subdivision of a State.""  See also 18 U.S.C. §§ 4002, 4013(a)(4) (general authority to contract with States for housing of federal prisoners).  However, this authorization provides authority to enter into only those contractual relationships to which a State or a subdivision thereof chooses to agree. 

The States have not agreed to implement a policy of secret detentions.  For example, the intergovernmental service agreements between the United States and Hudson and Passaic Counties, New Jersey, demonstrate that the Hudson and Passaic County Jails are not federal agencies, and that service that the local jails provide must be ""fully consistent with all applicable laws, standards, policies, procedures and court orders applicable to its facility . . . unless, or as specifically modified by this Agreement."" Hudson County Intergovernmental Service Agreement, Art. II, p.1, Ja130 (emphasis supplied). Further clarifying the specific contractual obligation of the officers of the counties, the agreement specifies that: ""Admission and discharge of INS detainee(s) shall be fully consistent with the Contractor's policies and procedures, and shall ensure positive identification and recording of both detainee(s) and officer(s).""  Id. at Art. IV, p.1, Ja131 (emphasis supplied). It is evident from the contractual agreement that the United States not only consented to, but indeed mandated that Hudson and Passaic County Jails keep the records pertaining to inmates committed to their care pursuant to the federal agreements in accordance with state law, which requires release of the information that the regulation purports to keep secret.

II.        The Interim Rule Is Invalid Because It Was Issued in Violation of the Administrative Procedure Act

The interim rule was promulgated in violation of the Administrative Procedure Act, 5 U.S.C. § 553, and therefore has no legal effect even if the Attorney General had authority to issue it. See Mobay Chemical Corp. v. Gorsuch, 682 F.2d 419, 426 (3d Cir. 1982). ""A substantive rule is invalid if the issuing agency fails to comply with the APA."" San Diego Air Sports Center v. FAA, 887 F.2d 966, 971 (9th Cir. 1989)(citing Linoz v. Heckler, 800 F.2d 871, 878 (9th Cir. 1986)).  See also Buschmann v. Schweiker, 676 F.2d 352, 356 (9th Cir. 1982)(""[a] regulation is invalid if the agency fails to follow procedures required by the Administrative Procedure Act"")(citations omitted); Kelly v. United States Department of Interior, 339 F. Supp. 1095, 1101 (E.D. Cal. 1972) (""reaffirming the fundamental principle that administrative regulations are void unless published in strict conformity with the Administrative Procedure Act."")(citation omitted). 

As the preamble to the interim rule acknowledges, immigration regulations issued pursuant to the INA must comply with the process for notice-and-comment rulemaking set forth in the Administrative Procedure Act (APA).  See Zhang v. Slattery, 55 F.3d 732 (2d Cir. 1995) (immigration regulations must comply with APA despite ""foreign affairs"" exception); Kokoris v. Johnson, 180 F.2d 355 (4th Cir. 1950); Hou Ching Chow v. Attorney General, 362 F. Supp. 1288 (D.D.C. 1973).

A.                The Rule Is ""Arbitrary and Capricious"" Because There is No ""Rational Connection Between the Facts Found and the Choice Made""

When a court reviews agency action pursuant to the APA, it must set aside that action where it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).  While "[t]he scope of review is narrow under the 'arbitrary and capricious,' standard,"" ""the agency must examine the relevant data and articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.'"" Motor Vehicle Mfrs. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).

The preamble to the interim rule says that a number of serious harms might result from revealing the identities or other information regarding INS detainees related to the September 11 investigation.  The government does not provide any evidence that the harms it posits would actually occur if state facilities were free to comply with their own laws and reveal basic information about immigration detainees.  Rather, the preamble reiterates almost verbatim the speculations which are set forth in the Declaration of James S. Reynolds, which has been filed in several lawsuits.  But at least three courts have explicitly rejected the Reynolds declaration as too speculative to support the government's secret detentions policy.[3]

However, even if the interim rule were correct in its dire predictions, the rule as issued applies to all INS detainees and is therefore overbroad in relation to the government's stated goal of preserving the secrecy of the September 11 investigation.  The government gives no reason why, in order to preserve the secrecy of its September 11 investigation, it must also prevent the States from revealing the names and other information regarding all other INS detainees, including detainees who have no relationship to the government's investigation.  The government's investigation involved at its height at least 751 immigration detainees, but (according to the government) that number has dwindled to 74 as of June 13.  Yet the number of INS detainees on a given day in FY2001 was 19,533, the majority of which are housed in state and local facilities.  The government simply does not address why a rule restricting access to all INS detainees in state and local facilities is needed, thereby failing to articulate the required connection between the facts it found and the choice it made.  In so doing, the INS has made the same mistake that has caused courts to strike down many other regulations as arbitrary and capricious.  See, e.g., Chemical Mfrs. Ass'n v. EPA, 28 F.3d 1259, 1265 (D.C. Cir. 1994) (finding environmental regulation arbitrary and capricious because ""there is simply no rational relationship between the [scientific] model [used by the agency] and the known behavior of the hazardous air pollutant to which it is applied."")

B.                 The Rule Was Issued Without Notice and Comment in Violation of the Administrative Procedure Act  

The rule is also invalid for failure to follow the normal notice-and-comment procedure required by the APA.  No ""good cause"" exists that would permit the rule to be excused from the normal notice-and-comment process.  See 5 U.S.C. § 553(b)(B) and (d)(3).  The rule took effect on April 17, 2002, and was published five days later, months after both the attacks on September 11 and the initial requests for information concerning detainees had been at both the state and federal levels.  If the government felt it was so vital to establish a ""uniform policy"" on the release of information, there is no reason it could not have published a proposed regulation in January and accepted public comments at that time.

The APA requires that every agency regulation be published for comment for no less than 30 days prior to its effective date.  5 U.S.C. § 553. It is well-settled that a ""period for comments after promulgation cannot substitute for the prior notice and comment required by the APA.""  Sharon Steel Corp. v. EPA, 597 F.2d 377, 381 (3d Cir. 1979).  See also Natural Resources Defense Council v. EPA, 683 F.2d 752, 767-68 (3d Cir. 1982); Wagner Elec. Corp. v. Volpe, 466 F.2d 1013, 1020 (3d Cir. 1972).  ""If a period for comments after issuance of a rule could cure a violation of the APA's requirements, an agency could negate at will the Congressional decision that notice and an opportunity for comment must precede promulgation."" Sharon Steel, 597 F.2d at 381.

The preamble to the interim rule notes correctly that the required 30 day notice and publication requirement may be dispensed with when ""good cause"" exists.  The ""good cause"" exception to the APA excuses notice and publication requirements only ""when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest."" 5 U.S.C. 553(b)(B).  A claim under the ""good cause"" exception must be closely scrutinized to prevent creating an exception that would swallow the rule. Zhang v. Slattery, 55 F.3d 732, 746 (2nd Cir. 1995).  ""Any claim of exemption from APA rule-making requirements 'will be narrowly construed and only reluctantly countenanced.'"" Thrift Depositors of America v. Office of Thrift Supervision, 862 F. Supp. 586, 591 (D.D.C. 1994) (citation omitted). See also United States Steel Corp. v. EPA, 595 F.2d 207, 214 (5th Cir. 1979); National Nutritional Foods Ass'n v. Kennedy, 572 F.2d 377, 384 (2d Cir. 1978) (""The legislative history of the Administrative Procedure Act demonstrates that Congress intended the exceptions in §553(b)(B) to be narrow ones"").

""A mere recitation that good cause exists, coupled with a desire to provide immediate guidance, does not amount to good cause."" Zhang, 55 F.3d at 746 (citation omitted). As the legislative history explains:

The exemption of situations of emergency or necessity is not an ""escape clause"" in the sense that any agency has discretion to disregard its terms or the facts.  A true and supported or supportable finding of necessity must be made and published. ""Impracticable"" means a situation in which the due and required execution of the agency function would be unavoidably prevented by its undertaking public rule-making proceedings. ""Unnecessary"" means unnecessary so far as the public is concerned, as would be the case if a minor or merely technical amendment in which the public is not particularly interested were involved. 

National Nutritional Foods, 572 F.2d at 385 (citing S. Rep. No. 752, 79th Cong., 1st Sess. (1945)).  The proposed regulation fails to meet this heavy burden. First, there has been no ""true and supported"" finding of necessity for secret detentions. As discussed above, the preamble simply recites the speculations of the Reyolds declaration, which have been rejected by the courts.  Second, the rule certainly is not ""a minor or merely technical amendment in which the public is not particularly interested.""  Id.  Lawsuits have been filed seeking disclosure of the names of the INS detainees and members of Congress have also sought this information.  Moreover, this issue has received considerable national attention. See, e.g., Elizabeth Amon, Lighting the Dark, The National Law Journal, Vol. 24, No. 31, April 8, 2002; Linda Greenhouse, A Penchant for Secrecy, N.Y. Times, May 5, 2002. Certainly, this is a matter in which the public has a profound interest.

Perhaps most tellingly, compliance with the APA would not have been ""impracticable"" or even particularly difficult.  Organizations including the ACLU have made repeated requests to national, state and local authorities for inmate information beginning in October 2001. Yet the proposed regulation was not issued until April 17, 2002.  The proposition that it was ""impracticable"" to comply with a 30 day publication mandate during an eight-month or six-month period is insupportable.

III.       The Rule Should Be Rescinded Because It Facilitates a Policy That Has Shielded the Government's Unconstitutional Actions from Public Scrutiny

The government's policy of secret detentions was rejected by every court, state or federal, that considered it prior to the adoption of the interim rule.[4]  Rather than heed the warnings of these adverse court decisions, the interim rule defies them, attempting to override longstanding rules of openness with a new federal rule of secrecy.  Indeed, the rule expands the secrecy policy, by (1) forbidding state, local and private facilities from releasing information about ""any detainee,"" including those having nothing to do with the government's September 11 investigation, and (2) by providing that state documents that contain information about INS detainees are not ""public records,"" thereby purporting by administrative fiat to preempt every state governments' laws on the subject.

The rule will frustrate the ability of the American Civil Liberties Union, other organizations, state and federal elected officials, and the general public to access information concerning INS detainees that is vital to ensuring that their rights are respected.  Lengthy detentions without charge, serious impediments to detainees' rights to access counsel, and other abuses have been well documented over the past eight months.[5]  Continued secrecy will only lead to more abuse.

The government's shifting reasons for its policy of secret arrests have not withstood public, Congressional and judicial scrutiny.  In the United States, the arrest and detention of an individual by the government is a public act, and cannot legitimately be made secret by the government.  While some aspects of the immigration system can legitimately be shielded from public view, that does not include the basic fact of the arrest of an individual.  Moreover, closure of a legal proceeding can only be ordered on a case-by-case basis, based on specific findings and after hearing objections by the detainee or the public.  By contrast, the interim rule applies to all detainees in non-federal facilities.  It does not apply simply to specific, sensitive information but rather applies to such basic information as the identity of a detainee, the fact of an arrest, and the basis of a charge against a person.

Secret arrests are indeed ""odious to a democratic society . . . .""  Morrow, 417 F.2d at 741-42.  Because the Attorney General lacks authority to change that basic principle of American governance, much less to force the states to do so against their will, the interim rule should be rescinded.

Sincerely,

Timothy H. Edgar
ACLU Legislative Counsel