8.5 - Public Access

(a) General Public — 

          (1) Oral argument — With the exceptions noted below, oral argument is generally open to the public and employees of the Department of Justice, subject to space limitations and priorities given to the parties and the news media.  See generally 8 C.F.R. § 1003.27(a).

• Oral arguments involving applications for asylum or withholding of deportation/removal, or a claim brought under the Convention Against Torture are open to the public unless the respondent (or the respondent’s practitioner of record, if represented) expressly requests that the oral argument be closed.  In cases involving such applications or claims, the Board will inquire of the respondent (or the respondent’s practitioner of record) whether the oral argument should be closed.
• Exclusion proceedings are closed to the public unless respondent (or the respondent’s practitioner of record, if represented) expressly requests that the oral argument be open to the public.
• Oral arguments involving a respondent abused spouse or child are closed to the public.  Oral arguments involving a respondent spouse may be open to the public if the abused spouse expressly agrees that the oral argument and record of proceedings will be open to the public.
• Oral arguments are closed to the public if information is to be presented or discussed which is subject to a protective order or documents filed under seal by DHS.

See generally 8 C.F.R. §§ 1003.27, 1003.31(d), 1003.46, 1208.6, 1240.10(b), 1240.11(c)(3)(i), 1240.32, 1240.33(c)(1).  Only parties, their practitioners of record, and persons authorized by the Board in advance, including employees of the Department of Justice, may attend a closed argument.  If classified information is to be presented, or discussed during an oral argument, the proceedings are closed to the public.  Also, no one may be present in the oral argument room without, among other things, the appropriate security clearance and a legitimate “need-to-know” the information.  See generally Executive Order 13526 and any related orders.

The Board may limit attendance or hold a closed hearing if appropriate to protect parties or witnesses, or when a closed hearing is otherwise in the public interest.  See generally 8 C.F.R. § 1003.27(b).

          (2) Requests to open oral argument — In appropriate cases, parties may waive their right to a closed hearing and permit oral argument to be open to the public.  The request must be made in writing and sent to the Oral Argument Coordinator at least 15 days prior to the scheduled date of oral argument.  The request must be served upon the other party.  See Chapter 3.2 (Service).  The request should be phrased as follows:

“I hereby request and consent that oral argument in the matter of [name of party] be open to the public and, further, I hereby consent that information contained within the record of proceedings may be released to the public. I acknowledge that this waiver of confidentiality may not be withdrawn after oral argument has begun.”

Parties may not retract their request within 24 hours of the scheduled time for oral argument.  Also, parties may not request that specific persons be excluded from an open oral argument.

          (3) Requests to close oral argument — Certain types of oral argument cases are automatically closed to the public.  See Chapter 8.5(a)(1) (Oral argument).  The Board may, at its discretion, close oral argument.  See generally 8 C.F.R. § 1003.27(b).   A party may request that oral argument be closed but must do so in writing at least 15 days prior to the time of oral argument and serve the request on the other party.  See Chapter 3.2 (Service).  The request must set forth in detail the rationale for closing the hearing.

          (4) Reserved seating — A party may request that the Board reserve up to 5 gallery seats for the party’s invitees.  A reserved seating request must be made to the Oral Argument Coordinator at least 15 days prior to the scheduled date of oral argument.  The Board tries to accommodate all reasonable requests for additional seating, subject to space limitations and any special considerations that may arise.

(b) Recording and Broadcasting — The public, including the parties and the news media, may not bring any recording or broadcasting devices into oral argument, whether photographic, audio, video, or electronic in nature.  See generally 8 C.F.R. § 1003.28.

(c) News Media — Representatives of the news media may attend oral argument that is open to the public.  The Board reserves 10 gallery seats for members of the media.  The news media are subject to the general prohibition on recording and broadcasting.  See subsection (b), above.  The news media are welcome to contact the  Communications and Legislative Affairs Division for information about cases selected for oral argument and to request reserved seating.  Seating reservations should be made at least 24 hours in advance of the scheduled time for oral argument.  See Appendix A (Directory).