303 F.3d 681 (6th Cir. 2002), 02-1437, Detroit Free Press v. Ashcroft

Docket Nº:02-1437.
Citation:303 F.3d 681
Party Name:DETROIT FREE PRESS, et al., Plaintiffs-Appellees, v. John ASHCROFT, et al., Defendants-Appellants.
Case Date:August 26, 2002
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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303 F.3d 681 (6th Cir. 2002)

DETROIT FREE PRESS, et al., Plaintiffs-Appellees,


John ASHCROFT, et al., Defendants-Appellants.

No. 02-1437.

United States Court of Appeals, Sixth Circuit

August 26, 2002

Argued: Aug. 6, 2002.

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Herschel P. Fink (argued and briefed), Brian D. Wassom (briefed), Honigman, Miller, Schwartz & Cohn, Detroit, MI, for Detroit Free Press, Inc.

Jonathan Rowe (briefed), Soble & Rowe, Ann Arbor, MI, for Herald Co., Inc.

Lee Gelernt (argued and briefed), American Civil Liberties Union Foundation, New York, NY, Leonard M. Niehoff (briefed), Butzel Long, Ann Arbor, MI, Michael J. Steinberg (briefed), Kary L. Moss (briefed), American Civil Liberties Union Fund of Michigan, Detroit, MI, for Detroit News Inc.

Gregory G. Katsas (argued and briefed), U.S. Dept, of Justice, Tort Branch, Civ. Div., Robert M. Loeb (briefed), Sharon Swingle (briefed), U.S. Dept, of Justice, Civ. Div., App. Sec, Eric D. Miller (briefed), U.S. Dept, of Justice, App. Staff, Civ. Div., Washington, DC, for John Ashcroft.

Before KEITH and DAUGHTREY, Circuit Judges; CARR, District Judge.[*]


KEITH, Circuit Judge.

The primary issue on appeal in this case is whether the First Amendment to the United States Constitution confers a public right of access to deportation hearings. If it does, then the Government must make a showing to overcome that right.

No one will ever forget the egregious, deplorable, and despicable terrorist attacks of September 11, 2001. These were cowardly acts. In response, our government launched an extensive investigation into the attacks, future threats, conspiracies, and attempts to come. As part of this effort, immigration laws are prosecuted with increased vigor. The issue before us today involves these efforts.

The political branches of our government enjoy near-unrestrained ability to control our borders. "[T]hese are policy questions entrusted exclusively to the political branches of our government." Fiallo v. Bell, 430 U.S. 787, 798, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977). Since the end of the 19th Century, our government has enacted immigration laws banishing, or deporting,

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non-citizens because of their race and their beliefs. See, e.g., Wong Wing v. United States, 163 U.S. 228, 237, 16 S.Ct. 977, 41 L.Ed. 140 (1896) (court cannot limit Congress from expelling "aliens whose race or habits render them undesirable as citizens"); Chae Chan Ping v. United States, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889) ("The Chinese Exclusion Case"); Galvan v. Press, 347 U.S. 522, 529, 74 S.Ct. 737, 98 L.Ed. 911 (1954) (finding that Congress can deport former member of Communist organization even if they personally did not advocate the violent overthrow of the Government); Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1952). While the BUI of Rights jealously protects citizens from such laws, it has never protected non-citizens facing deportation in the same way. In our democracy, based on checks and balances, neither the Bill of Rights nor the judiciary can second-guess government's choices. The only safeguard on this extraordinary governmental power is the public, deputizing the press as the guardians of their liberty.1 "An informed public is the most potent of all restraints upon misgovernment[.]" Grosjean v. Am. Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 80 L.Ed. 660 (1936). "[They] alone can here protect the values of democratic government." New York Times v. United States, 403 U.S. 713, 728, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam) (Stewart, J., concurring).

Today, the Executive Branch seeks to take this safeguard away from the public by placing its actions beyond public scrutiny. Against non-citizens, it seeks the power to secretly deport a class if it unilaterally calls them "special interest" cases. The Executive Branch seeks to uproot people's lives, outside the public eye, and behind a closed door. Democracies die behind closed doors. The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully, and accurately in deportation proceedings. When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation. The Framers of the First Amendment "did not trust any government to separate the true from the false for us." Kleindienst v. Mandel, 408 U.S. 753, 773, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) (quoting Thomas v. Collins, 323 U.S. 516, 545, 65 S.Ct. 315, 89 L.Ed. 430 (Jackson, J., concurring)). They protected the people against secret government.

The Office of the Chief Immigration Judge, under the authorization of Attorney General John Ashcroft, designates certain cases to be special interest cases, conducted in secret, closed off from the public. Arguing that closure of these hearings was unconstitutional, plaintiffs in three separate cases sought an injunction against such action. The Government filed a motion to dismiss, arguing that closing special interest cases was not unconstitutional.

The district court granted the injunction, finding blanket closure of deportation hearings in "special interest" cases unconstitutional. For the reasons that follow, we AFFIRM the district court's order granting Plaintiffs a preliminary injunction.

I. Facts and Procedural History

On September 21, 2001, Chief Immigration Judge Michael Creppy issued a directive (the "Creppy directive") to all United States Immigration Judges requiring closure of special interest cases. The

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Creppy directive requires that all proceedings in such cases be closed to the press and public, including family members and friends. The Record of the Proceeding is not to be disclosed to anyone except a deportee's attorney or representative, "assuming the file does not contain classified information." "This restriction on information includes confirming or denying whether such a case is on the docket or scheduled for a hearing."

On December 19, 2002, Immigration Judge Elizabeth Hacker conducted a bond hearing for Rabih Haddad ("Haddad"), one such special interest case. Haddad was subject to deportation,2 having overstayed his tourist visa. The Government further suspects that the Islamic charity Haddad operates supplies funds to terrorist organizations. Haddad's family, members of the public, including Congressman John Conyers, and several newspapers sought to attend his deportation hearing. Without prior notice to the public, Haddad, or his attorney, courtroom security officers announced that the hearing was closed to the public and the press. Haddad was denied bail, detained, and has since been in the government's custody. Subsequent hearings, conducted on January 2 and 10, 2002, were also closed to the public and the press. Haddad has been transferred to Chicago for additional proceedings.

Haddad, several newspapers (the "Newspaper Plaintiffs"),3 and Congressman Conyers filed complaints for injunctive and declaratory relief, asserting claims under (1) the Administrative Procedures Act ("APA"), 5 U.S.C. § 551 et seq.; (2) the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., and the regulations promulgated thereunder, 8 C.F.R. §§ 3.27 & 240.10; and (3) the First and Fifth Amendments to the United States Constitution. They named Attorney General Ashcroft, Chief Immigration Judge Creppy, and Immigration Judge Hacker as defendants (collectively "the Government"). Among the claims asserted, the Newspapers Plaintiffs (separately from Haddad) sought a declaratory judgment that the Creppy directive, facially and as applied, violated their First Amendment right of access to Haddad's deportation proceedings. They further sought to enjoin subsequent closures of proceedings in Haddad's case and a release of all transcripts and documents from previous proceedings.4

The district court granted the Newspaper Plaintiffs' motion. Finding that the Newspaper Plaintiffs had a First Amendment right of access to the proceedings under Richmond Newspapers Inc., v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), and its progeny,5 the

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district court further declined to review the Government's actions under the highly deferential standard articulated in Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). See Detroit Free Press v. Ashcroft, 195 F.Supp.2d 937, 946 (E.D.Mich.2002). The Government timely filed its notice of appeal. In the interim, on April 10, 2002, the Government obtained a temporary stay of the district court's order from this Court. On April 18, 2002, we dissolved the temporary stay and denied the Government's motion for stay pending this appeal.

II. Standard of Review

We review the grant of a preliminary injunction for an abuse of discretion, but questions of law are reviewed de novo. Gonzales v. National Board of Medical Examiners, 225 F.3d 620, 625 (6th Cir. 2000).

To determine whether to grant a motion for a preliminary injunction, a court must analyze the following four factors:

"(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction."

Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001) (quoting Rock & Roll Hall of Fame & Museum, Inc. v. Gentile Prods., 134 F.3d 749, 753 (6th Cir. 1998)).

III. Analysis

A. Likelihood of Success on the Merits

1. The Effect of the Government's Plenary Power Over Immigration

The Government argues that the district court...

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