The Department of Homeland Security (DHS) in early August 2003 asked immigration Judge Robert Newberry to close the Detroit deportation hearing of a Syrian man with alleged ties to al-Qaeda.
The DHS quickly scaled back its request after the Detroit News objected.
After the newspaper filed its challenge, the government asked to close only those portions of the hearing involving an FBI memo. Newberry granted the government's revised request Aug. 12, 2003, according to an Aug. 13, 2003, report in the Detroit News.
Nabil al-Marabh, a 37-year-old Syrian who was on the government's terrorist watch list in September 2001 and who was detained less than two weeks after the Sept. 11, 2001 terrorist attacks, opposed the government's effort to close the hearing.
The government's original closure request came less than a year after a three-judge panel of the federal Court of Appeals held in Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002) that the First Amendment forbids the wholesale closure of immigration hearings. The Sixth Circuit later refused a government request for the entire court to review the case.
A month after the Sixth Circuit panel's decision, the Third Circuit ruled that such proceedings are administrative, not judicial, and therefore are not subject to the First Amendment's presumption of openness. (See "Sixth, Third Circuit Courts Split on Deportation Hearing Question" in the Fall 2002 issue of the Silha Bulletin.)