[Federal Register Volume 67, Number 102 (Tuesday, May 28, 2002)]
[Rules and Regulations]
[Pages 36799-36803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13264]


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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.

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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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