Thursday, March 26, 2009

ICE Detention Centers Unlawfully Close Immigration Courts to General Public

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:



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]
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.

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.

Sunday, March 15, 2009

Anti-War Arguments: Vietnam v. Iraq

For the last week of the "Law and Politics" course I teach, students attended a screening of "Weather Underground," a 2002 documentary by Sam Green that Obama's presidential campaign made relevant again for its interviews with Bill Ayers. (Ayers, a former key player in the Weather Underground and now a professor at Northwestern University Law School, was the guy whose acquaintanceship with Obama demonstrated the latter's inclinations to terrorism.)

One of the bits of the film that always strikes me is that the Students for a Democratic Society as well as the Weather Underground offshoot objected to the war largely because it was killing and maiming Vietnamese villagers by the dozens, hundreds, thousands, tens of thousands, and eventually millions.

Like Henry David Thoreau, and unlike the contemporary left rhetoric against U.S. occupations in Iraq and Afghanistan, the protesters in the 1960s objected to a war of aggression because they did not want to be cogs in a machine that was systematically crushing an innocent population, not because they were worried about the deaths of U.S. soldiers.

Here's what Thoreau wrote, in the essay now published as "On the Duty of Civil Disobedience" and originally titled "Resistance to Civil Government" (1849), an inspiration for Gandhi as well as Martin Luther King, Jr.--the reading is paired with their watching "The Weather Underground":
"Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents on injustice. A common and natural result of an undue respect for the law is, that you may see a file of soldiers, colonel, captain, corporal, privates, powder-monkeys, and all, marching in admirable order over hill and dale to the wars, against their wills, ay, against their common sense and consciences, which makes it very steep marching indeed, and produces a palpitation of the heart."
The injustice Thoreau had in mind was the war on Mexico and Mexicans on behalf of filibuster terrorists (mostly U.S. citizens) trying to establish slavery in northern Mexico in violation of its Constitution. He could not imagine U.S. citizens could rationally support this war and yet despite their objections, he noted that they still served in the army carrying it out. )

Thoreau and other writers never imagined that the government could attract this lemming-like support for imperialism and mass killing without a draft. Nor, one thinks, would they imagine that pacifists would support soldiers for their patriotic service. I know this is not fashionable but I have no patience for sympathy extended by commentators on the Left to "our soldiers" IN A VOLUNTEER ARMY when little is said about the people in the countries who did not choose to be invaded. And yet in their stress on the harms the wars are causing U.S. soldiers and their silence on the civilians killed by U.S. drones attacking homes in Pakistan and Afghanistan, the Left has capitulated to a cheap provincialism. Rachel Maddow and Keith Olbermann are indistinguishable from Rush Limbaugh in mouthing platitudes about people who have agreed to kill because they are either mercenaries or zealots, neither of which are motives worthy of respect from progressives.

A few days ago I asked students in my class at the University of California at Santa Barbara to discuss the difference between the anti-war arguments in the film and those by the Left today. The response paraphrased:
'The Vietnamese were Communists and this war is fought against terrorists. People in the United States in the 1960s were more open to Communism than they are today to terrorism.'
The course I teach is about theories of sovereignty and offered no information about the Vietnam War; my question was to provoke them to think about why there might be this disparity. The response, both illogical and inconsistent with historical facts, was fascinating to me. The only way that they could imagine an anti-war movement would stress the harms war caused non-U.S. populations was to impute to the U.S. public in the 1960s a sympathy to Communism! (They explained that the Left didn't need to worry about a Right that would attack them for these arguments because the U.S. public was open to Communism, unlike the contemporary U.S. public which is terrified of terrorism, so to speak, and will allow harms against anyone, except U.S. soldiers, apparently, to thwart this.)

But really the weird answer is because of a misleading premise in my question. There is no anti-war movement today. Although the anti-war movement in the 1960s and 1970s spoke on behalf of the Vietnamese under siege by the U.S. government, the fact that there was a draft perhaps made war politically salient to a student population (and their parents) that today finds it a remote sideshow.

According to the Revolutionary Association of Afghan Women, the source of the image above of graves being prepared for Masmo villagers killed by the U.S., Obama has been worse for Afghan civilians than Bush: In January they estimate between 78-83 civilians were killed by the drones he ordered into Pakistan and Afghanistan.

Perhaps the only way the U.S. public might care about the people the U.S. government invades is to make sure that our youth are also targeted as potential invaders. Hard to know if we would have had more war if our Presidents could call up millions at short notice (the worry of the U.S. Congress that ended the draft in 1973), or fewer, for the same reason.
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