Detroit Free Press v. John Ashcroft

OPINION

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. “[Tjhese 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, *683 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 Bill 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 *684 Creppy directive requires that all proceedings in such cases be closed to the press and public, including family members and Mends. 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 Co-nyers, 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 injunc-tive 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 *685 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 erred in ruling that the government’s plenary power over immigration did not warrant deferential review. See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) (no First Amendment bar to excluding people because of their beliefs); Wong Wing, 163 U.S. at 237, 16 S.Ct. 977 (courts cannot limit Congress from expelling “aliens whose race or habits render them undesirable as citizens”). We are unpersuaded by the Government’s claim, which would require complete deference in all facets of immigration law, including non-substantive immigration laws that infringe upon the Constitution. We hold that the Constitution meaningfully limits non-substantive immigration laws and does not require special deference to the Government.

The Government’s broad authority over immigration was first announced more than one-hundred years ago in The Chinese Exclusion Case, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889). In that case, the Court recounted the strife following Chinese immigration to California after the gold rush of the mid-1800’s. A convention of lawmakers in California had petitioned Congress to alleviate this “problem.” The petition charged, among other things, that:

the presence of Chinese laborers had a baneful effect upon the material interests of the State, and upon public morals; that their immigration was in numbers approaching the character of an Oriental invasion, and was a menace to our civilization....

Id. at 595, 9 S.Ct. 623. Noting this plea against “existing and anticipated evils,” the Court valued the “the well-founded apprehension — from the experience of years— that limitation to the immigration of certain classes from China was essential to the peace of the community on the Pacific Coast, and possibly the preservation of our civilization there.” Id. at 594, 9 S.Ct. 623. Adding that “[i]t seemed impossible for them to assimilate with our people or to *686 make any change in their habits or modes of living!,]” id. at 595, 9 S.Ct. 623, the Court found that “if the government ... considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security,” this “determination is conclusive upon the judiciary.” Id. at 606, 9 S.Ct. 623; see also Fiallo, 430 U.S. at 792, 97 S.Ct. 1473 (“The power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.”) (citations omitted). This power was derived not from an express provision of the Constitution, but from powers incident to sovereignty. The Chinese Exclusion Case, 130 U.S. at 609, 9 5.Ct. 623.

Today, the Government seeks to expand upon the rule from this case. The Government argues that it has plenary authority over not only substantive immigration laws and decisions, but also non-substantive ones, like the Creppy directive. 6 Therefore, whether or not there is a First Amendment right of access to deportation proceedings, the Government argues, it can implement any non-substantive policy infringing upon that right if it is “facially legitimate and bona fide.” 7 See Kleindienst, 408 U.S. at 770, 92 S.Ct. 2576.

Even The Chinese Exclusion Case, however, acknowledged that Congress’s power over immigration matters was limited by “the constitution itself.” Id. at 604, 9 S.Ct. 623. Were we to adopt the Government’s position, one would wonder whether and how the Constitution could limit the political branches’ power over immigration matters. Similarly, that position would undercut the force of the First Amendment. “The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information.” New York Times, 403 U.S. at 723-24, 91 S.Ct. 2140 (Douglas, J., concurring) (citations omitted). It would be ironic, indeed, to allow the Government’s assertion of plenary power to transform the First Amendment from the great instrument of open democracy to a safe harbor from public scrutiny. In the words of Justice Murphy, “[such a] conclusion would make our constitutional safeguards transitory and discriminatory in nature.... [We] cannot agree that the framers of the Constitution meant to make such an empty mockery of human freedom.” Bridges v. Wixon, 326 U.S. 135, 162, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945) (Murphy, J., concurring). As a result, the Government’s stated position finds no authority in the Constitution and is untenable.

a. The Government Interprets Klein-dienst Too Broadly

The Government’s blanket reliance on Kleindienst ignores the varied aspects of immigration law. Immigration includes substantive laws over who may enter or remain in this country, laws governing procedural aspects of immigration hearings, and regulations on the mechanics of *687 deportation. Although acknowledging the political branches’ plenary power over all substantive immigration laws and non-substantive immigration laws that do not implicate constitutional rights, the Supreme Court has repeatedly allowed for meaningful judicial review of non-substantive immigration laws where constitutional rights are involved. Kleindienst did not change these long-standing traditions.

In Kleindienst, Ernest Mandel, a self-proclaimed “revolutionary Marxist” and Belgian citizen, sought entry into the United States to speak at a conference at Stanford University. Kleindienst, 408 U.S. at 756-59, 92 S.Ct. 2576. Mandel applied for and was denied a non-immigrant visa under a blanket provision of the Immigration and Nationality Act, § 212(a)(28), prohibiting the entrance of “anarchists” or “persons advocating the overthrow of the government.” Id. at 759, 92 S.Ct. 2576. In excluding Mandel, the Attorney General declined to exercise his discretionary authority to waive this prohibition. Id.

Several professors brought suit alleging a violation of their First Amendment rights. The Court stated the issue as this: “Whether the First Amendment confers upon the appellee professors, because they wish to hear, speak, and debate with Man-del in person, the ability to determine that Mandel should be permitted to enter the country or, in other words, to compel the Attorney General to allow Mandel’s admission.” Id. at 762, 92 S.Ct. 2576. The Court, while acknowledging that the professors’ First Amendment rights were implicated, affirmed the decision denying Mandel a visa. The Court stated:

[pjlenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under § 212(a) (28), Congress has delegated conditional exercise of this,power to the Executive. We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

Id. at 769-70, 92 S.Ct. 2576 (emphasis added).

Kleindienst differs from the present case in two important, and related, ways. First, Kleindienst involved a substantive immigration decision. The law and decision at issue determined who entered the United States. Here, the Creppy directive has no effect on the eventual outcome of the deportation hearings. Second, Klein-dienst, although recognizing a constitutional right, did not give any weight to that right. It specifically declined to balance the First Amendment right against the government’s plenary power, because the law was a substantive immigration law. Therefore, if the First Amendment limits non-substantive immigration laws, Klein-dienst offers no authority that the Government’s actions are entitled to deferential review — Kleindienst ignored the existence of the professors’ First Amendment rights altogether. Nor does it offer authority that the First Amendment does not limit non-substantive immigration laws — Klein- dienst involved a substantive immigration law. In a case such as this, where a non-substantive immigration law involving a constitutional right is at issue, the Supreme Court has always recognized the importance of that constitutional right, never deferring to an assertion of plenary authority.

b. The Constitution, Including the First Amendment, Meaningfully Limits Nonr-Substantive Immigration Laxos

The Supreme Court has always interpreted the Constitution meaningfully to *688 limit non-substantive immigration laws, without- granting the Government special deference. First, the Supreme Court has explicitly stated that non-citizens are afforded “the same constitutional protections of due process that we accord citizens.” Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 309, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970) (citing Kwong Hai Chew v. Colding, 344 U.S. 590, 596, 73 S.Ct. 472, 97 L.Ed. 576 (1953) (stating that “once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.”)).

As old as the first immigration laws of this country is the recognition that non-citizens, even if illegally present in the United States, are “persons” entitled to the Fifth Amendment right of due process in deportation proceedings. See Wong Wing, 163 U.S. at 238, 16 S.Ct. 977 (recognizing Fifth Amendment right in deportation proceedings); see also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953) (“It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”) (citing Yamataya v. Fisher, 189 U.S. 86, 100-101, 23 S.Ct. 611, 47 L.Ed. 721 (1903) (“The Japanese Immigrant Case ”); Wong Yang Sung v. McGrath, 339 U.S. 33, 49-50, 70 S.Ct. 445, 94 L.Ed. 616 (1950); Kwong Hai Chew, 344 U.S. at 598, 73 S.Ct. 472). Therefore, the Fifth Amendment limits non-substantive immigration laws.

As firmly established as the due process rights of deportees is the rule that non-citizens seeking initial entry have no right to due process. See Ex rel. Mezei, 345 U.S. at 212, 73 S.Ct. 625 (“[A]n alien on the threshold of initial entry stands on different footing[.]”). Non-citizens seeking initial entry have no ties to the United States, and are, therefore, not “persons” within the meaning of the Fifth Amendment. See Kwong Hai Chew, 344 U.S. at 598, 73 S.Ct. 472. Whatever process the government affords them, no matter how minimal, illusory, or secret, is due process of law, beyond the scope of judicial review. See Ex rel. Mezei, 345 U.S. at 212, 73 S.Ct. 625 (citing Knauff v. Shaughnessy, 338 U.S. 537, 544, 70 S.Ct. 309, 94 L.Ed. 317 (1950)).

Therefore, in stark contrast to a deportation hearing, the Government may exclude a non-citizen seeking initial entry without a hearing or disclosure of the evidence and reasons relied upon. Compare Knauff, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317, with Kwock Jan Fat v. White, 253 U.S. 454, 40 S.Ct. 566, 64 L.Ed. 1010 (1920). The difference between these two situations demonstrates not only that the Bill of Rights limits the government’s power over non-substantive immigration laws, but also that the limitation is meaningful. The Government is not entitled to special deference in this area.

In Knauff v. Shaughnessy, the Attorney General excluded the alien-wife of a citizen and war veteran without a hearing or reasons for the decision. Knauff, 338 U.S. at 539, 70 S.Ct. 309. The Court stated: “Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court ... to review the determination of the political branch of the Government to exclude a given alien.” Id. at 543, 70 S.Ct. 309 (citations omitted).

In Kwock Jan Fat v. White, the government tried to deport a person claiming citizenship, based on evidence produced in absentia and not recorded or released to the deportee. Kwock Jan Fat, 253 U.S. at 457, 40 S.Ct. 566. Not deferring to the government’s interpretation of due pro *689 cess, or its reasons for limiting the process given, the Court reversed the order of deportation. Id. at 465, 40 S.Ct. 566. Fittingly, the Court warned of the danger of secret hearings, given the government’s extraordinary power:

The acts of Congress give great power to the Secretary of Labor over Chinese immigrants and persons of Chinese descent. It is a power to be administered, not arbitrarily and secretly, but fairly and openly under the restraints of the tradition and principles of free government applicable where the fundamental rights of men are involved, regardless of their origin or race.

Id. at 464, 40 S.Ct. 566. Requiring this exacting, non-deferential review of the Fifth Amendment was important, because it was the “province of the courts, in proceedings for review, to prevent abuse of [the government’s] extraordinary power.” Id.; see also Wong Wing, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140 (finding that deportation procedures violated Fifth and Sixth Amendment); Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954) (“Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process.”) (citations omitted).

The difference between the Court’s deferential review of non-substantive laws and procedures in Knaujf and its exacting review in Kwock Jan Fat lies not in the fact that the former involved an exclusion proceeding and the latter a deportation proceeding; nor does it lie in the fact that Kwock Jan Fat was based on any added rights afforded citizens, as the Court discussed the power over both “Chinese immigrants and persons of Chinese descent.” Kwock Jan Fat, 253 U.S. at 464, 40 S.Ct. 566. Rather, the difference in the Court’s review turned on the existence of a constitutional right. As a non-citizen seeking initial entry, Knauff was not a “person” entitled to due process within the meaning of the Fifth Amendment, while Kwock Jan Fat was such a person, having been at least a resident. See also Ex rel. Mezei, 345 U.S. at 215, 73 S.Ct. 625 (excluding a non-citizen upon initial entry does not “deprive him of any statutory or constitutional right”). The premium placed on constitutional rights, not formalistic distinctions between exclusion and deportation proceedings, can further be shown by the fact that the Supreme Court has reversed exclusions of non-citizens where they had sufficient ties to the United States to give them standing to assert constitutional rights.

For example, in Landon v. Plasencia, 459 U.S. 21, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982), the Court held that a resident non-citizen, returning from a brief trip abroad, was entitled to due process, including a hearing regarding