Greetings from Florence, Arizona. This morning I was unlawfully denied access to the immigration courts at the Eloy Detention Center run by the privately-owned CCA and the Florence Detention Center, run by DHS.
Last year when I attempted to gain access to the proceedings for a US citizen ICE was trying to deport (Rene Saldivar) at the Eloy Detention Center (about 30 minutes southwest of here), I was refused on the grounds that only family members and attorneys were allowed in. At the time, I was not aware of the rules governing immigration courts.
A federal prosecutor in San Diego last fall informed me that immigration courts are supposed to be open to the public, and sure enough, 8 CFR § 1003.27 states:
I arrived at the Eloy Detention Center this morning to attend the 8:30 a.m. hearings. The guard asked me if I was an attorney or a family member. I said I was a member of the general public and it was my understanding that unless a judge or detainee had specifically requested a closed hearing, the immigration courts were open to the general public. An attorney waiting to go in specifically invited me to a hearing for a client he was about to represent in the courtroom of Judge Phelps.
PART 1003 - EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
subpart c - IMMIGRATION COURT - RULES OF PROCEDURE
1003.27 - Public access to hearings.
All hearings, other than exclusion hearings, shall be open to the public except that: (a) Depending upon physical facilities, the Immigration Judge may place reasonable limitations upon the number in attendance at any one time with priority being given to the press over the general public; (b) For the purpose of protecting witnesses, parties, or the public interest, the Immigration Judge may limit attendance or hold a closed hearing.
(c) In any proceeding before an Immigration Judge concerning an abused alien spouse, the hearing and the Record of Proceeding shall be closed to the public unless the abused spouse agrees that the hearing and the Record of Proceeding shall be open to the public. In any proceeding before an Immigration Judge concerning an abused alien child, the hearing and the Record of Proceeding shall be closed to the public.
(d) Proceedings before an Immigration Judge shall be closed to the public if information subject to a protective order under 1003.46, which has been filed under seal pursuant to 1003.31(d), may be considered.
[52 FR 2936, Jan. 29, 1987. Redesignated and amended at 57 FR 11571, 11572, Apr. 6, 1992; 62 FR 10334, Mar. 6, 1997; 67 FR 36802, May 28, 2002]
The guard called his supervisor and a man identifying himself as Captain Adams came out. He told me that I needed to be ""preapproved." I asked if he was aware that immigration courts are supposed to be open to the general public. First he said yes, and then he said no and left to get his supervisor.
The Director of Security Carey told me I needed prior approval from ICE before I could enter the detention facility. I asked him how I should obtain this, who in ICE should I contact? He said I could contact "anyone." I asked what I needed to submit to them. He said I needed to give them my social security number, my date of birth, and my address.
The guard at the desk gave me the phone number for the ICE agents running Eloy and said maybe I could have a phone screening and come the next day. As cell phones are not allowed in the Center I returned to the parking lot, called the ICE number for Eloy and spoke with Mark, an ICE supervisor. He told me that everyone entering the facility needs a background check and that can take two weeks: "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."
I told him it was my understanding that unless a judge had closed the proceedings, the law said that immigration courts were open to the general public. He repeated the security policy for the facility and added that even contractors entering needed these checks. I told him that under the law contractors do not have a right to perform work at a detention center, but the law says that the general public should be allowed access to immigration court proceedings.
I then drove back to Florence to try my luck at the detention center run by DHS. The guard seemed to think it wouldn't be a problem and said I needed to wait for an escort. After about 15 minutes he said his supervisor called and that it would not be possible for me to enter. He gave me the number for the Florence ICE agents and the agent there told me something slightly different from the agent at Eloy, that I needed prior approval from the agent in charge of the facility. He connected me to this person and I got the voice mail for what sounded like a Janet Ellison. I left a message. She has not returned my call.
After making the call, I asked the Florence guard if he was aware that immigration courts were supposed to be open to the general 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.'"
An EOIR spokesperson informs me that when reporters try to gain access to hearings in ICE detention centers and are rebuffed, EOIR tells them that EOIR only controls their buildings and that reporters must coordinate arrangements with ICE if the hearings are in ICE facilities. I suggested that this was not legal and that the EOIR either needed to pull their hearings from the ICE centers or instruct ICE on the law regarding the public's access to immigration proceedings.
Immigration court for detainees, the most legally fragile population in the country, already resembles a kangaroo court. They are the main victims. Justice does not flourish in secret court hearings. But US citizens also have a stake in seeing how immigration law enforcement is being implemented in their name. Open courts are a crucial part of a functioning democracy. Before DHS Secretary Janet Napolitano and Attorney General Eric Holder throw legal residents out of the country for crimes and misdemeanors, they need to follow the law themselves.