ACLU Asks Appeals Court to Reconsider Ruling Upholding Closed Hearings in Sept. 11 Immigration Cases

Affiliate: ACLU of New Jersey
November 22, 2002 12:00 am

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NEW YORK — The American Civil Liberties Union today asked a federal appeals court to reconsider a ruling that immigration hearings involving people detained after Sept. 11 may be unilaterally closed by the government without the input of a court.

“We continue to believe that secret hearings are not consistent with our constitutional system and run counter to the most basic principles of fairness,” said Lee Gelernt, a senior staff attorney with the ACLU’s Immigrants’ Rights Project, which along with the ACLU of New Jersey represented a group of New Jersey newspapers in their challenge to the unprecedented closure policy.

At issue is a policy set forth in a September 21, 2001, memo from Chief Immigration Judge Michael Creppy to all immigration judges requiring the closure of all proceedings to the public and the press, when directed by the Justice Department.

“It is difficult to overstate the implications of the panel’s ruling,” the ACLU said in its legal brief. “Deportation hearings determine whether individuals will spend months in detention, be separated from their families, and then be removed from a country in which they may have lived for years. Yet this court has now held that the government may conduct these hearings behind closed doors. That is a remarkable proposition.”

The decision by a three-judge panel of the Third Circuit Court of Appeals in Philadelphia, the ACLU said, will determine “whether in the aftermath of September 11, the structural safeguards of our constitutional system will be abandoned, leaving the Executive branch with unprecedented, unilateral and unchecked powers.”

Specifically, the ACLU said that a rehearing was warranted because the panel’s decision directly conflicts with the finding of a federal appeals court in Cincinnati in a similar case, as well as with other decisions from its own court and the United States Supreme Court. The ACLU said the ruling also creates considerable uncertainty regarding the future application of access to court hearings and, as both the majority and dissent observed, the decision involves issues of extraordinary importance that “go to the heart of our institutions.”

The ACLU has also challenged the government’s secrecy rules in the case of an immigrant from Detroit. In that case, a three-judge panel of the Sixth Circuit Court of Appeals in Cincinnati last month unanimously struck down the Creppy policy, saying, in a much-quoted decision, that “Democracies die behind closed doors.” A government request for a full court rehearing in that case is pending.

The case is North Jersey Media Group, Inc. and New Jersey Law Journal v. Ashcroft, No. 02-2524.

The ACLU request for a rehearing is online at /node/35406

The Third Circuit’s decision is online at

The Sixth Circuit’s decision is online at

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