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DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8
CFR Part 3 [EOIR 133; AG Order No. 2585-2002]
RIN 1125-AA38
Protective
Orders in Immigration Administrative Proceedings AGENCY: Executive Office
for Immigration Review, Justice. ACTION: Interim rule with request for comments. ----------------------------------------------------------------------- SUMMARY:
This interim rule amends regulations governing the Executive
Office for Immigration
Review (``EOIR'') by authorizing immigration
judges to issue protective orders
and seal records relating to law
enforcement or national security information.
The rule will apply in
all immigration proceedings before EOIR. This rule
is necessary to
ensure that sensitive information can be protected from general
disclosure while affording use of that information by the respondent,
the
immigration judges, the Board of Immigration Appeals, and reviewing
courts. DATES:
Effective date: This rule is effective May 21, 2002.
Comment date: Written
comments must be submitted on or before July
29, 2002. ADDRESSES: Please
submit written comments to Charles Adkins-Blanch,
General Counsel, Executive
Office for Immigration Review, 5107 Leesburg
Pike, Suite 2600, Falls Church,
Virginia 22041, telephone (703) 305-
0470. FOR FURTHER INFORMATION CONTACT:
Charles Adkins-Blanch, General
Counsel, Executive Office for Immigration Review,
5107 Leesburg Pike,
Suite 2600, Falls Church, Virginia 22041, telephone (703)
305-0470. SUPPLEMENTARY INFORMATION: Immigration Judge Authority to
Issue Protective Orders and Seal Records This interim rule amends 8 CFR
3.27 and 3.31, and adds 8 CFR 3.46
to authorize immigration judges to issue
protective orders and accept
documents under seal. This authority will ensure
that sensitive law
enforcement or national security information can be protected
against
general disclosure, while still affording full use of the information
by the immigration judges, Board of Immigration Appeals, the
respondent,
and the courts.
The Immigration and Naturalization Service (``Service'') may
need
to introduce in immigration proceedings sensitive law enforcement or
national security information. For example, the Service may need to
introduce
grand jury information or information that reveals the
identity of confidential
informants, witnesses, or sources to establish
that release from custody of
a particular respondent poses a danger to
the safety of other persons under
section 236 of the Immigration and
Nationality Act (``Act''), 8 U.S.C. 1226.
Similarly, the Service may
need to introduce sensitive evidence of organized
criminal activity,
either in the United States or in a foreign country, to
establish the
basis on which the Service believes that the respondent ``is
or has
been an illicit trafficker in any controlled substance'' under section
212(a)(2)(C)(i) of the Act, 8 U.S.C. 1182(a)(2)(C)(i), and is
inadmissible.
The disclosure of such information could clearly
jeopardize ongoing criminal
investigations and the safety of any
sources and law enforcement officers.
This rule is necessary to ensure
that a respondent in proceedings will not
disclose that information to
individuals not authorized to possess the information.
This rule is also necessary because apparently innocuous law
enforcement or
national security information may be valuable to persons
with a broader view
of a subject. See generally, McGehee v. Casey, 718
F.2d 1137, 1149 (D.C. Cir.
1983) (``[d]ue to the mosaic-like nature of
intelligence gathering, for example,
[w]hat may seem trivial to the
uninformed may appear of great moment to one
who has a broad view of
the scene and may put the questioned item of information
in context'')
(internal quotations omitted). Certain circumstances may therefore
require that access to information submitted to an immigration judge be
restricted.
This regulation provides immigration judges and the Service
with the flexibility
to protect this information where necessary.
In this post-September 11, 2001,
era, the highest priority of the
Department of Justice (``Department'') is
to prevent, detect, disrupt,
and dismantle terrorism while preserving constitutional
liberties. The
intelligence and law enforcement communities' ability to collect
and
protect information relating to terrorist organizations is vital to the
success of the United States' mission against terrorism. Failure to
protect
sensitive information may impede future collection efforts or
aid terrorists
who seek to harm Americans by revealing the thrust,
sources, and methods of
the Government's investigations. Disclosures of
such sensitive information
could allow terrorists to discern patterns
in an investigation, enabling them
to evade detection in the future.
Disclosure of sensitive information could
also reveal the identity of
witnesses, allowing terrorists to threaten those
witnesses or their
families, and to make all witnesses less likely to cooperate.
Such
disclosures could also give terrorists clues as to what the Government
knows and, sometimes more importantly, what the Government does not
know.
Such information could enable terrorists to adjust their plans in
ways that
avoid Government detection and that further endanger American
lives. The Third
Circuit recently recognized this principle: ``We are not inclined to impede
investigators in their efforts
to cast out, root and branch, all vestiges
of terrorism both in our
homeland and in far off lands. As the [Supreme] Court
has stated:
`Few interests can be more compelling than a nation's need to
ensure its own security. It is well to remember that freedom as we
know
it has been suppressed in many countries. Unless a society has
the capability
and will to defend itself from the aggressions of
others, constitutional protections
of any sort have little meaning.' Wayte v. United States, 470 U.S. 598,
611-612 (1985).'' Kiareldeen v. Ashcroft, 273 F.3d 542, 555-56 (3d Cir.
2001). The
premise of this interim rule is that ongoing investigations require
that sensitive information be protected from general disclosure in
immigration
proceedings [[Page 36800]] and that regulatory authority for such
protection is appropriate.
These regulations are a prudent and balanced acknowledgment
of the
reality that the Government's efforts against terrorism require the
Department to treat information collected by the law enforcement and
intelligence
communities as vital national assets. The Attorney General's Authority to
Issue These Regulations Congress has plenary authority over immigration
matters. U.S.
Const. Art I, sec. 8, cl. 4.
Congress has delegated to the
Attorney General broad authority to
administer the Act, to manage the Service,
and to effectuate the
administrative adjudication functions related to immigration.
8 U.S.C.
1103(a). Moreover, the Attorney General has an active role in the
administration of the intelligence and law enforcement communities,
both
of which implicate the President's plenary authority over foreign
relations.
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537,
542 (1950); United
States v. Curtiss-Wright Export Corp., 299 U.S. 304,
319 (1936) (``In this
vast external realm, with its important,
complicated, delicate and manifold
problems, the President alone has
the power to speak or listen as a representative
of the nation'').
Indeed, the courts have viewed the President's inherent
powers as a
justification for permitting Congress to make remarkably broad
delegations of its authority in the immigration field. Knauff, 338 U.S.
at
543; Curtiss-Wright Export Corp., 299 U.S. at 319-20 (when dealing
with foreign
affairs Congress may delegate a degree of discretion that
would not be permissible
if domestic policy alone were involved); see
also Jean v. Nelson, 472 U.S.
846, 879 (1985) (Marshall, J.,
dissenting) (a lesser degree of procedural
due process has been
accorded to respondents in cases involving national security).
The Attorney General here is exercising the confluence of the
authority granted
by Congress under the Act and his authority inherent
from his position as
Attorney General concerning immigration policy,
with regard to all such matters
that are not subject to either a
statutory mandate or an express prohibition.
See Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 636-37 (1952)
(Jackson, J.
concurring).
This rule complements several other authorities
to retain
information. A directive by Chief Immigration Judge Creppy on September
21, 2001, that certain ``special interest'' cases should be closed to
the
public under 8 CFR 3.27, has generally limited the disclosure of
information
during hearings by limiting the attendees to those
hearings. This rule is
designed to work in tandem with that authority,
and in a limited sense, codify
a portion of that authority, by limiting
what the respondent and his or her
representatives may disclose about
sensitive law enforcement and national
security information outside the
context of those hearings. The rule does
not, however, replace or
diminish the authority of the Chief Immigration Judge
to manage the
Immigration Courts and close hearings. The Chief Immigration
Judge will
continue to use 8 CFR 3.9 and 3.27 to ensure that testimony before
an
Immigration judge does not disclose sensitive law enforcement and
national
security information. Process for Protective Orders This rule utilizes
several elements of protective orders in federal
courts in the immigration
administrative adjudication process. The
Service may file a motion, with or
without sealed information, to
acquire a protective order for that information.
The motion will be
served on the respondent, who may respond within a short
time. The
information will not be made available to the respondent. The
Immigration
judge may review the information in camera only to
determine whether to grant
or deny the motion.
If a motion is denied, the information must be returned
to the
Service. The Service may appeal that decision immediately and any
appeal
must be decided expeditiously. This process maintains the status
quo to the
greatest extent possible while the protective order is
considered.
If
the motion is granted, an appropriate protective order is issued
and the respondent
will be provided with the information under the
protective order. The respondent
may challenge the admissibility of the
information as evidence. The respondent
may appeal the determination at
the conclusion of proceedings. Standards
for Issuance of a Protective Order The Department recognizes that the issuance
of a protective order
raises First Amendment free speech issues. In this rule,
the protective
orders are limited to an important and substantial governmental
interest in safeguarding the public, and national security and law
enforcement
concerns. The rule no more limits a respondent's, or the
respondent's representatives,
rights than is necessary or essential to
protect the particular governmental
interests involved. Like the
protective orders under Federal Rule of Civil
Procedure 26(c), the
Department seeks only to limit a respondent's ability
to disclose or
disseminate information discovered in the removal process and
subject
to the protective order. The Department believes that this rule is
sufficiently narrow to meet the requirements of the Supreme Court in
Seattle
Times Company v. Rhinehart, 467 U.S. 20 (1984) (interpreting
Rule 26(c) and
a district court protective order issued in discovery)
and Gentile v. State
Bar of Nevada, 501 U.S. 1030 (1991) (public
statements of attorney and application
of bar disciplinary process). To
do so, the rule utilizes a requirement that
there be a substantial
likelihood that disclosure or dissemination will harm
the law
enforcement or national security interests of the United States.
Moreover, the rule must be construed to comply with constitutional
requirements.
For example, the rule could not be applied to preclude a
respondent from publicly
stating the content of his own testimony
before the immigration judge. See
Butterworth v. Smith, 494 U.S. 624
(1990). A respondent could, however, be
ordered not to disclose what he
or she has learned from the protected information
that comes into his
or her knowledge during the proceedings, including, for
example, the
significance of information that the respondent already knows.
Id., at
632 (``right to divulge information of which he was in possession
before he testified before the grand jury, and not information which he
may
have obtained as a result of his participation in the proceedings
of the grand
jury''). Protective Orders in Other Administrative Contexts The issuance
of protective orders in administrative proceedings is
not a new concept. On
the contrary, a number of agencies have exercised
this type of authority in
the past, in situations that do not pose the
same degree of danger to the
interests of the United States. See, e.g.,
4 CFR 21.4 (General Accounting
Office; protection of proprietary,
confidential, or source-selection sensitive
material in bid protests);
14 CFR 13.220 (Federal Aviation Administration;
discovery in civil
penalty actions); 17 CFR 201.322 (Securities and Exchange
Commission;
rules of practice and procedure). Consequences of not Complying
With the Protective Order The administrative enforcement provision of this
interim rule sets
out various consequences that violators of a protective
order may face.
A respondent [[Page 36801]] who violates a protective
order, or whose attorney or accredited
representative violates a protective
order, will not be granted any
form of discretionary relief from removal.
The Supreme Court has upheld
an agency's ability to exercise discretionary
authority through
regulations. See Lopez v. Davis, 531 U.S. 230 (2001). Discretionary
relief is an ``an act of grace.'' Jay v. Boyd, 351 U.S. 345, 354
(1956).
Where a respondent has violated a protective order and thereby
possibly compromised
sensitive information, such grace ought not be
afforded readily--particularly
where the respondent has already shown a
disregard for this Nation's laws
by violating the terms of his or her
visa or otherwise violating the Act.
Thus, as an exercise of the
Attorney General's discretion, these regulations
provide that a
respondent who violates a protective order, or whose attorney
or
accredited representative violates a protective order, should generally
not be granted discretionary relief.
Attorneys and accredited representatives
may also be barred from
appearing in further proceedings before EOIR or the
Service. See 8 CFR
3.102(g) (contumelious conduct amounting to contempt).
An attorney's or
accredited representative's failure to comply with the protective
order
may be charged to the client and may impair the client's ability to
obtain discretionary relief.
The possibility that a respondent might violate
the order and
disclose protected information presented does not eliminate
the
importance of attempting to restrict access to the information. The
Department
believes that most respondents will comply with the
protective orders because
disclosure of some sensitive information may
imperil them directly. The
Respondents' Protection Against Unwarranted Disclosures The Department
also recognizes that a respondent may possess
information that is of such
a sensitivity to the respondent that it
warrants protection from general disclosure
and existing regulations
provide sufficient protection for the respondent.
For example, a
respondent who has applied for asylum under section 208 of
the Act will
naturally be testifying about events that he or she believes
have had
or will have horrific consequences. The application for asylum and
related documents are already the subject of non-disclosure
requirements.
8 CFR 208.6. Similarly, an immigration judge may close
proceedings in the
public interest, including for the protection of the
respondent. 8 CFR 3.27(b).
A lawful permanent resident is protected
from disclosure of personal information
by government officials under
the Privacy Act of 1974, 8 U.S.C. 552a. Respondents
arriving at a port
of entry who are denied admission also routinely receive
closed
hearings. 8 CFR 3.27. Moreover, the Department has a long-standing
policy against releasing information about any individual who is
involved
in civil proceedings in order to protect their privacy and the
integrity of
the adjudicatory process. 28 CFR 50.2(c). Accordingly, the
Department feels
that individual respondents in proceedings do not
require further privacy
protections for sensitive information. Good Cause Exception The Department's
implementation of this rule as an interim rule,
with provisions for post-promulgation
public comments, is based on the
``good cause'' exceptions found at 5 U.S.C.
553(b)(B) and (d)(3). The
reason and necessity for the immediate promulgation
of this rule are as
follows: Sensitive information developed by, or provided
to, the
Federal Bureau of Investigation or the Service in the course of
national
security and law enforcement investigations sometimes must be
presented to
Immigration judges in instances where disclosure of that
information would
jeopardize or compromise the national security or law
enforcement operations
of the Government as explained in the
Supplementary Information. Disclosure
could, for example, reveal
important information about the direction, progress,
focus and scope of
investigations arising out of the attack on September 11,
2001, and
thereby assist terrorist organizations in counteracting investigative
efforts of the United States.
In order to safeguard these important interests,
the immigration
judge must be given authority to issue protective orders to
safeguard
such sensitive information from disclosure. In light of the national
emergency declared by the President on September 14, 2001, in
Proclamation
7453, with respect to the terrorist attacks of September
11, 2001, and the
continuing threat by terrorists to the security of
the United States, and
the need immediately to control such information
pertaining to respondents
in immigration proceedings, there is good
cause under 5 U.S.C. 553(b) and
(d) for dispensing with the
requirements of prior notice and to make this
rule effective upon
signature. Regulatory Flexibility Act The
Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C.
605(b)), has reviewed this regulation and, by approving
it, certifies that
this rule will not have a significant economic
impact on a substantial number
of small entities. This rule applies
only to release of sensitive information
in immigration proceedings. It
does not have any impact on small entities
as that term is defined in 5
U.S.C. 601(6). Unfunded Mandates Reform
Act of 1995 This rule will not result in the expenditure by State, local,
and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely
affect small governments. Therefore, no actions were deemed
necessary under
the provisions of the Unfunded Mandates Reform Act of
1995. Small Business
Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule
as defined by section 251 of the
Small Business Regulatory Enforcement Act
of 1996, 5 U.S.C. 804. This
rule will not result in an annual effect on the
economy of $100 million
or more; a major increase in costs or prices; or significant
adverse
effects on competition, employment, investment, productivity,
innovation,
or on the ability of United States-based companies to
compete with foreign-based
companies in domestic and export markets. Executive Order 12866 This
rule is considered by the Department of Justice to be a
``significant regulatory
action'' under Executive Order 12866, section
3(f), Regulatory Planning and
Review. Accordingly, this rule has been
submitted to the Office of Management
and Budget for review. Executive Order 13132 This rule will not have
substantial direct effects on the States,
on the relationship between the
National Government and the States, or
on the distribution of power and responsibilities
among the various
levels of government. This rule merely pertains to the disclosure
of
sensitive information filed under seal in immigration proceedings.
Therefore,
in accordance with section 6 of Executive Order 13132, it is
determined that
this rule does not have sufficient federalism
implications to warrant the
preparation of a federalism summary impact
statement. [[Page 36802]] Executive
Order 12988, Civil Justice Reform This rule meets the applicable standards
set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988. Paperwork
Reduction Act Under the Paperwork Reduction Act of 1995, Public Law 104-13,
all
Departments are required to submit to the Office of Management and
Budget
(OMB) for review and approval, any reporting requirements
inherent in a final
rule. This rule does not impose any new reporting
or recordkeeping requirements
under the Paperwork Reduction Act. List of Subjects 8 CFR Part 3
Administrative practice and procedure, Aliens, Immigration.
Accordingly,
chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART
3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 1. The authority citation for
part 3 continues to read as follows: Authority: 5 U.S.C. 301, 8 U.S.C.
1101 note, 1103, 1231, 1252
note, 1252b, 1324b, 1253, 1362; 28 U.S.C. 509,
510, 1746; sec. 2,
Reorg. Plan No. 2 of 1950, 3 CFR 1949-1953 Comp., p. 1002;
section
203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510
of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub.
L.
106-554, 114 Stat. 2763A-326 to -328.
2. Section 3.27 is amended by
adding paragraph (d) to read as
follows:
[sect] 3.27 Public access
to hearings.
* * * * *
(d) Proceedings before an Immigration Judge shall
be closed to the
public if information subject to a protective order under
[sect] 3.46,
which has been filed under seal pursuant to [sect] 3.31(d), may
be
considered.
3. Section 3.31 is amended by adding paragraph (d)
to read as
follows:
[sect] 3.31 Filing documents and applications.
*
* * * *
(d) The Service may file documents under seal by including a cover
sheet identifying the contents of the submission as containing
information
which is being filed under seal. Documents filed under seal
shall not be examined
by any person except pursuant to authorized
access to the administrative record.
4. Section 3.46 is added to read as follows:
[sect] 3.46 Protective
orders, sealed submissions in Immigration
Courts.
(a) Authority. In
any immigration or bond proceeding, Immigration
Judges may, upon a showing
by the Service of a substantial likelihood
that specific information submitted
under seal or to be submitted under
seal will, if disclosed, harm the national
security (as defined in
section 219(c)(2) of the Act) or law enforcement interests
of the
United States, issue a protective order barring disclosure of such
information.
(b) Motion by the service. The Service may at any time after
filing
a Notice to Appear, or other charging document, file with the
Immigration
Judge, and serve upon the respondent, a motion for an order
to protect specific
information it intends to submit or is submitting
under seal. The motion shall
describe, to the extent practical, the
information that the Service seeks
to protect from disclosure. The
motion shall specify the relief requested
in the protective order. The
respondent may file a response to the motion
within ten days after the
motion is served.
(c) Sealed annex to motion.
In the Service's discretion, the
Service may file the specific information
as a sealed annex to the
motion, which shall not be served upon the respondent.
If the Service
files a sealed annex, or the Immigration Judge, in his or her
discretion, instructs that the information be filed as a sealed annex
in
order to determine whether to grant or deny the motion, the
Immigration Judge
shall consider the information only for the purpose
of determining whether
to grant or deny the motion.
(d) Due deference. The Immigration Judge shall
give appropriate
deference to the expertise of senior officials in law enforcement
and
national security agencies in any averments in any submitted affidavit
in determining whether the disclosure of information will harm the
national
security or law enforcement interests of the United States.
(e) Denied motions.
If the motion is denied, any sealed annex shall
be returned to the Service,
and the Immigration Judge shall give no
weight to such information. The Service
may immediately appeal denial
of the motion to the Board, which shall have
jurisdiction to hear the
appeal, by filing a Notice of Appeal and the sealed
annex with the
Board. The Immigration Judge shall hold any further proceedings
in
abeyance pending resolution of the appeal by the Board.
(f) Granted
motions. If the motion is granted, the Immigration
Judge shall issue an appropriate
protective order.
(1) The Immigration Judge shall ensure that the protective
order
encompasses such witnesses as the respondent demonstrates are
reasonably
necessary to the presentation of his case. If necessary, the
Immigration Judge
may impose the requirements of the protective order
on any witness before
the Immigration Judge to whom such information
may be disclosed.
(2) The
protective order may require that the respondent, and his
or her attorney
or accredited representative, if any:
(i) Not divulge any of the information
submitted under the
protective order, or any information derived therefrom,
to any person
or entity, other than authorized personnel of the Executive
Office for
Immigration Review, the Service, or such other persons approved
by the
Service or the Immigration Judge;
(ii) When transmitting any information
under a protective order, or
any information derived therefrom, to the Executive
Office for
Immigration Review or the Service, include a cover sheet identifying
the contents of the submission as containing information subject to a
protective
order under this section;
(iii) Store any information under a protective order,
or any
information derived therefrom, in a reasonably secure manner, and
return
all copies of such information to the Service upon completion of
proceedings,
including judicial review; and
(iv) Such other requirements as the Immigration
Judge finds
necessary to protect the information from disclosure.
(3)
Upon issuance of such protective order, the Service shall serve
the respondent
with the protective order and the sealed information. A
protective order issued
under this section shall remain in effect until
vacated by the Immigration
Judge.
(4) Further review of the protective order before the Board shall
only
be had pursuant to review of an order of the Immigration Judge
resolving all
issues of removability and any applications for relief
pending in the matter
pursuant to 8 CFR 3.1(b). Notwithstanding any
other provision of this section,
the Immigration Judge shall retain
jurisdiction to modify or vacate a protective
order upon motion of the
Service or the respondent. An Immigration Judge may
not grant a motion
by the respondent to modify or vacate a protective order
until either:
the Service files a response to such motion or 10 days after
service of
such motion on the Service.
(g) Admissibility as Evidence.
The issuance of a protective order
shall not prejudice the respondent's right
to [[Page 36803]] challenge the admissibility of the information subject
to a protective
order. The Immigration Judge may not find the information
inadmissible
solely because it is subject to a protective order.
(h) Seal.
Any submission to the Immigration Judge, including any
briefs, referring to
information subject to a protective order shall be
filed under seal. Any information
submitted subject to a protective
order under this paragraph shall remain
under seal as part of the
administrative record.
(i) Administrative enforcement.
If the Service establishes that a
respondent, or the respondent's attorney
or accredited representative,
has disclosed information subject to a protective
order, the
Immigration Judge shall deny all forms of discretionary relief,
except
bond, unless the respondent fully cooperates with the Service or other
law enforcement agencies in any investigation relating to the
noncompliance
with the protective order and disclosure of the
information; and establishes
by clear and convincing evidence either
that extraordinary and extremely unusual
circumstances exist or that
failure to comply with the protective order was
beyond the control of
the respondent and his or her attorney or accredited
representative.
Failure to comply with a protective order may also result
in the
suspension of an attorney's or an accredited representative's privilege
of appearing before the Executive Office for Immigration Review or
before
the Service pursuant to 8 CFR part 3, subpart G. Dated: May 21, 2002.
John
Ashcroft,
Attorney General.
[FR Doc. 02-13264 Filed 5-24-02; 8:45 am]
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