By Elaine Hargrove-Simon, Silha Fellow and Bulletin Editor
On May 27, 2003, the United States Supreme Court decided it would not
review the constitutionality of closed deportation hearings despite a
split decision in the Sixth and Third Circuit Courts. (See "Sixth,
Third Circuit Courts Split on Deportation Hearings Question"
in the Fall 2002 issue of the Silha Bulletin.)
The order, docket number 02-1289, North Jersey Media Group et al, v. John D. Ashcroft, is posted at the Supreme Court's Web site at http://www.supremecourtus.gov/docket/02-1289.htm.
The decision not to hear the case apparently was unanimous. The Supreme Court did not issue any statement related to its decision not to hear the case.
Following the Sept. 11, 2001 terrorist attacks, 766 immigrants were taken into custody, most based on allegations that they may have violated immigration laws. Chief Immigration Judge Michael Creppy ordered all "special interest" cases to be closed to the press, public and family members. To date, 611 deportation hearings have taken place, resulting in 505 actual deportations, Solicitor General Theodore Olson stated, according to the Associated Press. Other detainees have been turned over to the authorities for criminal prosecution.
The Sixth Circuit had ruled that hearings are traditionally open, and that open hearings also are required by a constitutional guarantee of access to the courts as well as other branches of government. "Democracies die behind closed doors," Sixth Circuit Judge Damon J. Keith wrote in his opinion. Chief Judge Edward R. Becker of the Third Circuit disagreed, writing that immigration hearings are administrative, rather than judicial,
and that therefore openness is not required.
In their petition to the Supreme Court, the North Jersey Media Group and the New Jersey Law Journal argued, "[T]he public has a critical need to know how its government is responding to the events of September 11, and, more generally, how the government enforced the nation's immigration laws." The groups were represented by the American Civil Liberties Union (ACLU).
Solicitor General Theodore Olson urged the Supreme Court not to grant the petition, contending that only one "special interest alien" remained who might be subjected to a closed deportation hearing. The Advocate in Baton Rouge quoted Olson as saying that the Justice Department's policy on closed hearings is "currently under review and will likely be revised to reflect the government's practical experience in dealing with these unique cases."
ACLU senior staff counsel Lee Gelernt told the Associated Press, "We'll be watching very closely to see if they actually change the policy, and if they don't change the policy, there's nothing to prevent us from bringing further litigation."
Responding to the high court's decision not to hear the case, U.S. Attorney General John Ashcroft posted a press release on the Department of Justice Web site, stating "The Supreme Court's decision today refused to disturb a Third Circuit ruling that is an important victory in support of our work to secure the nation. . . . Justice Department regulations dating from 1964 have expressly allowed select deportation hearings to be closed to protect public interest. This authority to close hearings is an important,
constitutional tool in this time of war, when we face unparalleled threat from covert and unknown foes across the globe." The press release is available online at http://www.usdoj.gov/opa/pr/2003/May/03_ag_312.htm.