Whether the Immigration and Naturalization Service Is Obligated by the First Amendment to Give Amnesty International Access to Haitian Nationals Held in Detention Pending Deportation Proceedings ( 1979 )

April 3, 1979
79-20 MEMORANDUM OPINION FOR THE
GENERAL COUNSEL, IMMIGRATION AND
NATURALIZATION SERVICE
Constitutional Law—First Amendment—
Amnesty International—Haitian Detainees
This is in response to your m em orandum o f February 15, 1979, request­
ing our opinion on the question whether the Immigration and Naturaliza­
tion Service (INS) is obligated by the First Amendment either to make
available to Amnesty International the names o f all Haitian nationals held
in detention pending deportation proceedings, or to give that organization
the opportunity to interview detained Haitians for the purpose o f deter­
mining whether they desire free legal representation in connection with
potential claims for asylum. Based on the facts that you describe, it is our
conclusion that INS is not obliged by the First Amendment to do either.
As we understand the situation, Amnesty International has indicated an
intent to claim that, as an organization with purposes and functions
similar in nature to those o f the National Association for the Advance­
ment o f Colored People (NAACP) and the American Civil Liberties
Union (ACLU), it has a First Am endm ent right to contact Haitian de­
tainees and to offer them free legal assistance, even if its aid has not been
requested by the particular detainee. You anticipate that ancillary to this
asserted primary First Am endm ent right, Amnesty International will
maintain that it has a right both to know the names o f all Haitians de­
tained and to interview each in person to assure that he or she is fully cog­
nizant o f the legal position and the assistance that that organization pro­
poses to offer. The claim will be that in order for the INS not to infringe
Amnesty International’s First Amendment right to association, INS is
obligated to provide the names and to permit face-to-face, one-on-one in­
terviews. This claim will be made within the following factual context.
Each Haitian detainee has already been informed that he or she has the
right to legal representation at no expense to the Government, see 8 CFR
§ 242.2(a) (1978), and has been given the names o f organizations in the
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community qualified under 8 CFR § 292.2 (1978),' that are willing to pro­
vide legal services without charge or at a nominal cost.2 If a detainee has
asked to be represented by an attorney or the accredited representative o f a
qualified organization, his designated counsel is permitted to interview
him as provided in § 21e-g o f the INS Administrative M anual.3 Further,
INS is willing to deliver, via a blind mailing, a written com m unication4
from Amnesty International to all Haitian detainees urging them to
authorize visits by representatives o f that organization. The INS will
honor the request o f an individual who authorizes such a visit.5
We assume for the purposes in this opinion that Amnesty International
is, for First Amendment analysis purposes, identical in nature to the
ACLU and the N A A CP, and that the Government may not, consistent
with the First Am endm ent, broadly prohibit it from offering free legal
representation to a person with a potential case that, if litigated, might
serve “ as a vehicle for effective political expression and association, as
well as a means o f communicating useful inform ation to the public.” In
Re Primus, 436 U.S. 412, 431 (1978). See also, N A A C P v. Button, 371
U.S. 415 (1963). However, that Amnesty International may have a limited
constitutional right to solicit, or indeed to communicate with, detainees
for other purposes, does not imply that INS is obliged to provide it with a
list o f potential litigants or that the Service must permit unrequested, in-
person interviews o f all detained Haitians.
With respect to a First Amendment duty o f INS to disclose to Amnesty
International a list o f Haitian detainees, we believe that organization to be
in a legal position analogous to that in which a reporter would find himself
were he to make such a claim. That is, although the Government may be
circumscribed by the First Amendment in regulating Amnesty Interna­
tional’s solicitation, as it is in regulating a reporter’s newsgathering ac­
tivities, that limitation—whatever its nature and scope—does not give
birth to a corollary affirmative duty to disclose or provide access to infor­
mation that is not generally available to the public. Cf., Houehins v.
KQED, Inc., 438 U.S. 1 (1978); Pell v. Procunier, 417 U.S. 817 (1974);
Saxbe v. Washington Post Co., 417 U.S. 843 (1974).6 In short, any right
1 Amnesty International, you state, has not applied for recognition under 8 CFR
§ 292.2(b), and therefore has no accredited representative under 8 CFR § 292.2(d) who may
represent aliens as permitted by 8 CFR § 292.1(a)(4).
1 You note that the Miami District Office has refused to refer detainees to the Haitian
Refugee Center.
1 Detainees are also permitted to have visits from relatives and friends, Adm inistrative
Manual § 21a, and Consuls. Id., § 21e.
4 Although you have not so stated, we assume that INS would be willing to com m unicate
the content o f the written comm unication orally to an illiterate detainee.
’ As we understand it, INS is willing to permit interviews by Am nesty International at the
request o f a detainee even though th at organization is not presently a qualified organization
in a position to provide accredited representation to aliens in administrative proceedings. See
n. 1, supra.
6 An argument can be m ade that this general rule must be a qualified one. T hus, were
(Continued)
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that Amnesty International may have to a list o f names o f detained Hai­
tians is co-extensive with and no greater than that o f the public.7
It is also clear that any First Am endm ent right that Amnesty Interna­
tional has to solicit does not preclude INS from adopting a policy
reasonably designed to protect the privacy o f detainees in its custody who
wish to be free from in-person, face-to-face solicitation. The Supreme
Court strongly implied, in In Re Primus, supra, at p. 435, n. 28, that even
with respect to “ free world” solicitation, the Government retains broad
power to limit unrequested face-to-face solicitation. That power clearly
exists when, as with detainees, the Government controls access to the
physical environment in which a person desiring and entitled to some
degree o f privacy finds himself.
W hen the Government places a person in a situation in which he is
unable to turn his back or walk away from third-party communications he
has no desire to see or hear, compare, Erznoznik v. City o f Jacksonville,
422 U.S. 205 (1975), it does not offend the First Amendment rights o f the
third party by offering its captive the opportunity to choose whether he
wishes to be communicated with before he is addressed in person. This is
so because the right o f one wishing to communicate or associate with
another has never been viewed as including the right to compel the person
to listen to or view unwanted communications. Rowan v. Post Office
Department, 397 U.S. 728, 737 (1970). The procedure that INS has
adopted, namely, that it will communicate Amnesty International’s desire
to solicit to all Haitian detainees and leave the decision whether to submit
to a face-to-face interview to each individual, is reasonable and does not
abridge any First Am endment right o f that organization. It is a procedure
(Continued)
the situation that, w ithout INS providing their names, Am nesty International would be to ­
tally unable to m ake contact with the Haitian detainees, and were litigating the cases o f the
Haitian detainees the only vehicle for exercising its First Am endment rights, Amnesty Inter­
national would have an appealing argum ent for a special right to disclosure. However, no
such argum ent is available to Am nesty International here. First, it has not shown that with
diligence it could not identify at least some o f the Haitian detainees (through, for instance,
talking to friends, relatives, attorneys, or refugee organization); and second—and more
im portantly—INS has offered to deliver its solicitation via a blind mailing.
1 T he public’s right to access to Governm ent records is defined by the Freedom o f Infor­
m ation A ct, 5 U .S.C . § 552 (1976). You have asked whether a list o f names o f Haitian de­
tainees would be withholdable under exemption (b)(6) o f that Act. The Office o f Inform ation
Law and Policy is the com ponent o f the Departm ent o f Justice to which questions concerning
the applicability o f an exem ption to a given fact situation should be addressed.
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sanctioned by the rule enunciated in Rowan v. Post Office Department,
supra. 8
John M . H armon
Assistant A ttorney General
Office o f Legal Counsel
' Rowan holds, generally, that the Governm ent may permissibly adopt a regulation that
permits a person to protect the privacy o f his hom e by requesting the Governm ent to order
his name removed from mailing lists for materials he finds offensive. We view a detainee’s
cell as his “ hom e” and believe that he has a right to privacy from third-party intrusions. We
read Rowan as authority for INS to protect that privacy by reasonable regulation and view as
reasonable a regulation (or procedure) that allows the detainee to decide which intrusions he
will permit.
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