DOJ squelches request for video in immigration case
The Justice Department said Thursday that it will block video recordings of next monthâs closing arguments in a Seattle court case that addresses the rights of child migrants to legal counsel in deportation proceedings. A DOJ spokesperson said the prohibition is only intended to protect the privacy of the 11 minors who are the plaintiffs in the suit against Attorney General Eric Holder and other top administration officials. But just last September, DOJ allowed the videotaping of oral arguments in the same case, and lawyers for the children have never raised such a privacy objection. Story Continued Below POLITICO had requested the March video under a court-sanctioned program in Seattle. The court had earlier approved a video recording of the September hearing in response to a request from POLITICO as part of the publicationâs coverage of the child migrant debate. The decision by DOJ to object on this round comes as newly released government data Thursday show that 88 percent of the 3,215 children ordered removed from the U.S. in the last five months of 2014 were without counsel. Critics of the administration said Justiceâs new objections to any video recording were self-serving and appear designed to lower the profile of a case that has become increasingly politically sensitive for the administration. In an emailed statement, Ahilan Arulanantham, a California-based American Civil Liberties Union attorney who has played a lead role in the Seattle case said: âThe governmentâs assertion that it is acting in the privacy interests of the children it is trying to deport without representation is hard to take seriously.â âThe privacy of all of our clients is more than adequately protected by the procedures already put in place by the Plaintiffs themselves as well as the Court, including most obviously the fact that every child involved has been named only by his or her initials,â he said. âThe governmentâs real concern likely arises from the fact that a widely-disseminated video of the hearing will make it easier to hold Immigration Judges and prosecutors accountable for the statements the government makes on their behalf.â POLITICOâs requests for the videos have been through the federal Cameras in Courts program, which allows recordings of some civil proceedings, although the presiding judge enjoys broad discretion to review a video before it appears on a website for the courts. Authorized by the Judicial Conference in 2010, the three-year pilot program began in June 2011, and the 14 courts that participate include Seattleâs U.S. District Court. The authorization was extended into 2015, and the recordings can be an immense help to out-of-state reporters trying to keep abreast of proceedings without incurring big travel or transcript costs. POLITICO made a request in August for a recording of the Sept. 3 hearing. The Seattle court quickly cleared that request, and a link to the video was posted on the uscourts.gov website available to all reporters and the public. When a POLITICO reporter requested the same sort of video for the March 6 arguments, the court processed the application again but then responded with a notice that one of the parties had objected. The offices of the clerk in Seattle and presiding U.S. District Judge Thomas Zilly declined to comment, saying they were obliged not to identify who had objected. But when pressed, officials at DOJ acknowledged that the department had exercised its right to veto the recording. DOJâs explanation is that it fears that in the course of the March hearing too much may spill out about the identities of the children, each of whom is listed in court documents only by initials, age and the Central American nation of origin. It argues that if this information is made easily accessible to the public through the video, it could compromise the privacy of many of the children who are seeking asylum. âWe opposed having the hearing videotaped because this case involves many minors seeking asylum,â a department spokesperson said. âThe last time the department was not aware that the discussion of individual cases is critical to that process and the court delves deeply into those facts and the video was made easily accessible on the courtâs website, which may compromise the privacy protections for individual asylum cases.â The Justice attorneys had apparently assumed that the video in September would be a temporary live-stream, not a more lasting record available to the public. But in fact, the design of the Cameras in Courts program builds in protections against a live video, and as the presiding judge, Zilly is empowered to review the recording â and potentially edit out any sensitive material â before itâs posted. According to the program guidelines, âa presiding judge may refuse, limit, or terminate the recording of an entire case, portions thereof, or testimony of particular witnesses: in the interests of justice; to protect the rights of the parties, and witnesses, and the dignity of the court, or for any reason considered necessary or appropriate by the presiding judge.â Asylum proceedings are presumed to be more closed-door than other immigration hearings because there may be testimony about threats and individuals back in the personâs native country. But veteran attorneys said there is no reason that the particulars of a childâs asylum need come up amid the legal arguments slated for the March hearing. But the political sensitivity of the lawsuit is real and has grown since it was filed July 9. The court fight has brought out splits in the administration over the best policy toward the thousands of unaccompanied children who crossed the Southwest border last spring and early summer. Arulanantham and fellow immigrant-rights attorney Matt Adams of Seattle argue that without legal counsel, the child migrants â many of whom are young and have little command of English â are being denied due process in the immigration courts, in violation of the Fifth Amendment. Holder himself is on record telling the last Congress that it is âinexcusableâ for young children to âhave immigration decisions made on their behalf, against them, whatever and theyâre not represented by counsel. Thatâs simply not who we are as a nation.â Yet the administration ordered immigration judges last summer to quickly arraign the new arrivals, and from mid-July to Oct. 21 they held an average of more than 800 âmaster calendarâ hearings per week for the children. Many received continuances to try to find lawyers, but government records show a consistent pattern that those without counsel fare worse. In that same three-month period, 94 percent of the 1,542 removal orders fell on children without attorneys. The new data that the Executive Office of Immigration Review released to POLITICO on Thursday add two more months of experience, but the numbers show the situation has improved only marginally. The Sept. 3 hearing came in the midst of the early surge in arraignments. Deputy Assistant Attorney General Leon Fresco painted a dire picture of what would result if Zilly granted the plaintiffsâ request for a preliminary injunction requiring every child to have counsel in any deportation proceeding. âThat would create a magnet effect that the United States is not prepared to handle,â Fresco said. âThat is free education for all those children being funded by localities and the states. That is whatever medical claims those children need plus an insecure border because you have now sent the message internationally that no one here is going to be removed.â In the same hearing, Fresco denied that the administration intended to create ârocket docketsâ for the children. âIf the kid cannot find a lawyer, the immigration judge can continue the case as many times as the immigration judge wants without penalty to the immigration judge. â¦ There are no case completion goals for minors in that situation.â Fresco succeeded in defeating the injunction request. But his words took on a life of their own as the video was circulated among legal service providers to urge immigration judges to slow down in cases where a child lacked counsel. âThe statements that the government made in court, which were the basis for the court denying the preliminary injunction, were then used to hold immigration judges accountable to what the government had actually said,â Arulanantham said in a telephone interview. âA video makes it harder for there to be a gap between what the government represents to the court and the reality for children facing deportation.â