You don't need to go to Iran or North Korea to find secret courts. They're alive and well right here in the United States. On March 26, 2009, I was denied access to immigration courts in Eloy and Florence, Arizona, even though a federal regulation states, "All hearings, other than exclusion hearings, shall be open to the public" with a narrow range of exceptions--none of which were cited as a reason for excluding me.
I'd heard horror stories about mass hearings and the humiliation of detainees by Immigration and Customs Enforcement (ICE) attorneys and judges, and I wanted to see for myself. But a guard told me only family members or attorneys could be admitted. An attorney in the lobby affirmed the legality of my request and invited me to attend his hearing. After waiting forty-five minutes and missing his hearing, I was told by the head of security to go to my car and call Eloy's ICE office. That's when I learned that detention centers across the country were restricting public access to immigration courts.
Mark Soukup, Eloy's supervisory detention and deportation officer, explained that ICE required anyone entering the immigration courts at Eloy to undergo a background check, for which one would need to submit in writing two weeks in advance one's name, date of birth, Social Security number, a home address and the particular hearing one wanted to attend. "The problem is that anyone with a felony or misdemeanor conviction in the last five years can be prohibited to come in for security reasons," Soukup explained.
The Eloy immigration courts are housed in a building behind two fences topped with barbed wire. You must be buzzed through two gates to enter the building. Access to the courts themselves requires going through a metal detector in a lobby with several guards and another locked door. Mentioning this, I asked Soukup how a background check enhanced security. He told me these were the rules that applied to everyone, including contractors. I replied that contractors did not have a right to work at a detention center, but the public has the right to attend immigration proceedings.
In 2002, the courts overturned a related policy closing immigration hearings to the public--the earlier rationale was that accused terrorists might disclose information prejudicial to "national security." Sixth Circuit Judge Damon J. Keith smacked down the Bush administration: "Today, the Executive Branch seeks to take this safeguard [open hearings] away from the public by placing its actions beyond public scrutiny.... The Executive Branch seeks to uproot people's lives, outside the public eye, and behind a closed door. Democracies die behind closed doors."
Lee Gelernt, the American Civil Liberties Union attorney whose arguments persuaded Judge Keith in the 2002 case that forced Attorney General John Ashcroft to rescind the exclusionary policy, finds the two-week prescreening policy unacceptable: "It is critical that the public and press have access to immigration proceedings to ensure that the proceedings are conducted fairly and consistent with due process principles. It is absolutely unlawful for the DHS to place unreasonable restrictions on access to immigration court."
Central Arizona is not lacking in immigration courts in detention centers, so I drove about thirty miles to the Florence Detention Center, which also had immigration court hearings scheduled that day. A judge at Florence had just deported a US citizen born in Colorado. I was curious about the courtroom demeanor of someone who would credit a 17-year-old's statement renouncing a claim to citizenship signed after a Border Patrol agent had torn up a copy of his birth certificate and threatened him with arrest, and would ignore his later freely made, sworn statement stating he was a US citizen.
The statement signed at the border is evidence of nothing except government misconduct. What kind of person ignores a birth certificate and extensive documentation of birth in a Denver hospital, including newborn infant reflex tests and an enlarged photo of the respondent holding the exact same birth certificate when he was about eight years old, and decides to permanently remove a US citizen from his country and render him stateless? How does he conduct his hearings? What was happening that day in his Florence courtroom?
I can't answer these questions because I was refused entry. After standing twenty minutes at the front gate--there's a sentry post regulating cars and foot traffic--the ICE guard said they would not allow me to enter, only attorneys and family members. I asked him if he was aware that immigration courts were supposed to be open to the public. He was affable, and said, "Yes, I know. I thought it was going to go good but then they called a supervisor and they said, 'No, we're not letting her in.'" He also gave me a phone number for ICE at Florence. The agent answering said that I needed to speak with someone else and then connected me to a woman's voicemail. No one returned my call that day or on subsequent occasions. The immigration courts at Florence are either closed to the entire public or are screening for ICE critics. Both actions are illegal.
In an interview, Representative Zoe Lofgren [1], a California Democrat and chair of the House subcommittee overseeing immigrant rights, expressed concern about the public's exclusion from immigration courts in detention centers. "A federal regulation requires proceedings to be open. The public has a right to attend these hearings under this regulation and any limit of this is in violation of this regulation," with the exceptions, Lofgren noted, of restrictions imposed at the discretion of the judges--for asylum claims, cases of sexual abuse or at the request of the respondent.
The Executive Office of Immigration Review (EOIR), an agency in the Department of Justice charged with managing immigration courts, reports that in 2008 its judges decided 134,117 deportation cases, of which 48 percent were for detainees. The individuals facing deportation hearings in these remote sites--far from their families, indigent and without attorneys--are the most legally fragile population in the country. The least the government can do is follow the law and allow public access to the courts. ICE is physically barring entry into the immigration courts in detention centers, but the real culprit is the EOIR. If that agency, under the Department of Justice, cannot arrange to allow the public into immigration courts in detention centers, then the Justice Department should house the courts in other facilities.
Mary Naftzger, a member of the Chicago New Sanctuary Coalition who frequently attends immigration hearings, said, "We have feedback from lawyers who say the judges are more respectful when court watchers are there." She explained that most of the respondents do not have attorneys and that judges ask them questions en masse "rather than examine their cases individually, a practice that changes once the court watchers arrive."
ICE and EOIR spokespersons state that a screening requirement is consistent with public access. But unlike other courts, those in the detention centers had no court watchers from the public that I could locate.
When I asked Tracy Blagec of ABLE [2], an interfaith coalition of churches, grassroots groups and unions doing immigration court watching in Atlanta--where the hearings are open to the public--how a screening requirement would affect her willingness to attend hearings, she said, "I wouldn't feel good about that, especially with it being Homeland Security. You just wonder what's it going to lead to," and she speculated about one's name being on a list flagged for security checks in airports or other forms of government harassment. She concluded that pre-screening would be "detrimental for the immigrants because it would severely limit the people who are advocating for them."
Blagec pointed out that this policy also gives the DHS a handy list of immigrant rights activists. DHS has one of the largest surveillance operations in the world. Who wants to be on that list? ICE Spokesperson Kelly Nantel said she did not know if ICE retained the names of those it screened in any database.
Naftzger, the Chicago-based activist, said a screening requirement would reduce participation in their program "a lot. Some of [the court watchers] are students, or have very busy schedules, and would not be able to submit that information two weeks ahead of time. We would resent doing that because it's a public courtroom. It fits an image that ICE may not want to portray, that all citizens are suspect, that they lump everyone as a potential suspect and can't trust people to come to into a public courtroom and behave."
"The only thing I want a courtroom to do, for the detained or non-detained, is make sure no one's carrying a knife or gun," said Dan Kowalski, an Austin immigration attorney and expert on immigration court procedures. Beyond that they have no business knowing the identity of the people going into the courts."
Hannah August, spokesperson for Department of Justice, minimized the screening requirements. "You just need to go through security, like a metal detector. You also need to get rid of your cellphone," she said. How would one know how to obtain prescreening? I asked. "To find out the rules you have to contact the facility." I told her that no one had answered the phone at Florence. "You go there." I told her I was calling from the front gate, and I reminded her that it took two weeks at Eloy for a prescreening, to which she replied, "What I've heard is that it's more like a day turnaround." When I asked her where she heard this, August said, "I can't go into this further."
ICE spokespersons say that as a result of inquiries on court access by public radio reporter Claudine LoMonaco and myself, Dora Schriro, a special advisor to Homeland Security Secretary Janet Napolitano, is including immigration court access under the policies she is evaluating. If the policy is not changed, Kowalksi says he and other civil liberties lawyers will file a lawsuit.