EOIR Regulation Authorizes Protective Orders Closing Immigration Hearings

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

EOIR REGULATION AUTHORIZES PROTECTIVE ORDERS CLOSING IMMIGRATION HEARINGS
Immigrants' Rights Update, Web Edition, July 15, 2002

The Executive Office for Immigration Review has issued an interim rule that authorizes immigration judges in individual immigration proceedings to issue protective orders that prohibit disclosure of information used in those proceedings. Protective orders may be issued where the Immigration and Naturalization Service establishes a "substantial likelihood" that disclosure of information that is or will be submitted under seal would harm national security or law enforcement interests.

The rule allows the INS, in requesting a protective order, to file documents with the immigration court under seal, which means the documents may not be examined by the respondent. The rule also requires the IJ to give "appropriate deference" to "senior officials in law enforcement and national security agencies" in assessing whether the disclosure of information will harm national security or law enforcement.

Once a protective order is issued, information subject to the order may not be disclosed except to authorized persons, and the rule provides sanctions for unauthorized disclosure of such information. A respondent who violates a protective order, or whose attorney or accredited representative violates a protective order, is barred from receiving any discretionary relief, except for bond. This bar does not apply if the respondent shows that he or she is fully cooperating with the INS or other law enforcement agencies investigating the disclosure of information and establishes "by clear and convincing evidence" either (1) that "extraordinary and extremely unusual circumstances" exist, or (2) that the violation of the protective order was beyond the control of the respondent and his or her attorney or legal representative. Attorneys and accredited representatives who violate a protective order may also be suspended from practice before EOIR.

The rule took effect on May 21, 2002, one week before it was published in the Federal Register. In promulgating the rule without the advance public notice and opportunity for comment generally required by the Administrative Procedure Act, the agency relied upon the "good cause" exception to this APA requirement, asserting that protective orders are needed because disclosure of information could prejudice investigations arising out of the attacks of Sept. 11, 2001. Comments on the interim rule must be submitted on or before July 29, 2002.

67 Fed. Reg. 36,799-803 (May 28, 2002).