ACLU Disappointed Over Federal Appeals Court Decision to Not Rehear Case Challenging Closed Hearings

Affiliate: ACLU of New Jersey
December 4, 2002 12:00 am

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PHILADELPHIA-Attorneys with the American Civil Liberties Union today expressed disappointment with a federal appeals court ruling that denied the petition of a group of newspapers to rehear a case that challenged the government’s practice of closing immigration hearings to the press.

“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.

In October a three-judge panel of the Third Circuit Court of Appeals in Philadelphia ruled that immigration hearings involving people detained after Sept. 11 may be unilaterally closed by the government without the input of a court. The ACLU asked the full court to reconsider the panel’s ruling.

In a narrowly divided vote handed down on December 2, six of 11 judges in an en banc court declined to rehear arguments. En banc means all available judges of the federal court of appeals considered the petition.

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.

The ACLU asserts that a rehearing was warranted because the Third Circuit’s October decision directly conflicted with the finding of a federal appeals court in Cincinnati in a similar case. The ACLU further said that the decision of the Philadelphia appeals court conflicted with previous rulings from that court and the U.S. Supreme Court.

The ACLU also said the ruling 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 in August unanimously struck down the Creppy policy, saying, in a much-quoted decision, that “Democracies die behind closed doors.”

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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