Sunday, June 21, 2009

Secret Courts and Immigrants

Secret Courts Exploit Immigrants
By Jacqueline Stevens
The Nation
June 16, 2009

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.

Editor's Note: An earlier version of this report
erroneously stated that the fences around the Eloy,
Arizona detention center were electrified. In fact, they
are not.

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

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, 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, 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

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


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