The opinion of the court was delivered by: Bissell, Chief Judge
This matter comes before the Court pursuant to plaintiffs' motion for a preliminary injunction. Defendants have filed opposition to the motion and have cross-moved for dismissal for lack of jurisdiction and for failure to state a claim.
Federal subject matter jurisdiction is asserted under 28 U.S.C. § 1331.
FACTUAL AND PROCEDURAL BACKGROUND
This action was initiated with the filing of a Complaint in this Court on March 6, 2002. Plaintiff North Jersey Media Group, Inc. is the publisher of the Herald News and the Record, two daily newspapers serving the northern New Jersey area. Plaintiff New Jersey Law Journal publishes a weekly newspaper covering law and public affairs. Plaintiffs allege that defendants John Ashcroft, the Attorney General of the United States, and the Honorable Michael Creppy, Chief Immigration Judge (collectively, "defendants" or "the government") have denied plaintiffs' right of access to certain deportation proceedings as protected by the First Amendment of the United States Constitution and federal regulation, specifically 8 C.F.R. § 3.27.
The facts alleged in the Complaint are as follows: Ten days after the terrorist attacks of September 11, 2002, Chief Immigration Judge Michael Creppy issued a memorandum to all Immigration Judges and Court Administrators, informing them that the Attorney General "`has implemented additional security procedures for certain cases in the Immigration Court.'" (Compl., ¶ 9) (quoting Memorandum from Chief Judge Michael Creppy to Immigration Judges of Sept. 21, 2001 ("Creppy Memo"), attached to Complaint as Exhibit A). To these "special interest" cases, the Creppy Memo applies a series of "additional security" procedures. Among these procedures is the requirement that Immigration Judges "hold the hearings individually,  close the hearing to the public, and  avoid discussing the case or otherwise disclosing any information about the case to anyone outside the Immigration Court.'" (Id., ¶ 10). Moreover, every special interest case "`is to he heard separately from all other cases on the docket,'" and "`[t]he courtroom must be closed for these cases - no visitors, no family, no press.'" (Id., ¶ 11). The Creppy Memo restricts public access to docket information, as well, specifically providing that "`restriction on information includes confirming or denying whether [a] [special interest case] is on the docket or scheduled for a hearing.'" (Id., ¶ 12). The restrictions and closure procedures of the Creppy Memo apply to all cases selected by the Attorney General. There is no provision in the Creppy Memo for an individualized determination of the reasons for closure in a given case. Furthermore, the directive does not require the government to demonstrate whether measures other than closure would serve its interests. (Id., Exh. A).
Plaintiffs allege, on information and belief, that scores, if not hundreds, of immigration hearings are currently being closed in this district pursuant to the Creppy Memo. For example, on November 22, 2001, Jim Edwards, a reporter for the Law Journal, was denied access to proceedings before the Immigration Court by court personnel acting under the dictates of the Creppy Memo. On February 13, 2002, Edwards was denied access to a hearing to be held the following day regarding Ahmed Raza before Immigration Judge ("IJ") Eugene Pugliese in Newark. On the day of the hearing, IJ Pugliese closed the proceedings pursuant to the Creppy Memo, barring Hillary Burke, a reporter for the Herald, from observing the proceedings. On the previous day, Burke was refused docket information with respect to special interest cases. On February 21, 2002, Edwards and Burke attempted to attend the removal hearing of Malek Zeidan, *fn1 a resident alien, before IJ Annie Garcy in Newark. When Judge Garcy called Zeidan's case, she asked the attorney for the INS whether the matter was a special interest case. Upon the attorney's affirmative response, Judge Garcy closed the hearing, ordering all members of the public, including the two reporters, to leave the courtroom. It is alleged that these instances are illustrative of a great many additional proceedings that will be similarly restricted under the dictates of the Creppy Memo.
This matter came before the Court on motions by the government to dismiss the Complaint for lack of subject matter jurisdiction and for failure to state a claim and by the plaintiffs for a preliminary injunction. Although it had already been fully briefed, the government indicated at oral argument that it was no longer pursuing its jurisdictional motion, conceding that general federal question jurisdiction was present under 28 U.S.C. § 1331. However, subject matter jurisdiction cannot be conferred by consent of the parties; it must be determined by the Court. Therefore, this Opinion begins with a discussion of the jurisdictional concerns raised originally by the government. The Court will then provide a consolidated discussion of the legal merits of plaintiffs' claims. Finally, the Court will address the remaining elements of the preliminary injunction motion.
I. GOVERNMENT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION IS DENIED.
A. Standard for Motion to Dismiss for Lack of Subject Matter Jurisdiction
It is axiomatic that the jurisdiction of the federal courts is limited and that the district courts are permitted to decide only claims falling within their subject matter jurisdiction as prescribed by the Constitution or federal statute. See U.S. Const. art. III, § 2; Rice v. United States, BATF, 68 F.3d 702, 706 (3d Cir. 1995). Proper adjudication depends on the existence of subject matter jurisdiction at all times throughout the duration of the case. Never presumed to exist, federal subject matter jurisdiction must be affirmatively demonstrated by the party seeking to invoke it before the court may proceed to the merits of the case. Philadelphia Federation of Teachers v. Ridge, 150 F.3d 319, 323 (3d Cir. 1998); Development Finance Corp. v. Alpha Housing & Health Care, Inc., 54 F.3d 156, 158 (3d Cir. 1995).
In its moving papers, the government argued that various sections of the Immigration and Nationality Act ("INA"), as amended by the Illegal Immigrant Reform, and Immigrant Responsibility Act of 1996 ("IIRIRA"), 110 Stat. 3009-546, preclude jurisdiction over the instant action. *fn2 Specifically, the government argued that this Court's jurisdiction to hear this action is barred by 8 U.S.C. § 1252(a)(1), (b)(9), (f)(1),(g).
As an initial matter, the Court observes that this suit is brought under the general federal question statute, 28 U.S.C. § 1331, by organizations of the press alleging that an administrative directive has denied them a right of access to immigration hearings that is protected by the First Amendment and federal regulations. These claims undoubtedly raise federal questions within the meaning of § 1331. Assuming for the moment the existence of plaintiffs' right of action, the relevant inquiry is whether statutory sections cited by the government withdraw what would otherwise be valid subject matter jurisdiction over these claims.
Before turning to the language of these sections, it is important to discuss certain presumptions that are implicated here. First, when examining legislation that arguably affects the court's jurisdiction, there is a presumption in favor of finding judicial review of administrative actions. INS v. St. Cyr, 533 U.S. 289, 298 (2001). Furthermore, in traditionally sensitive areas, courts presume that Congress does not intend to foreclose jurisdiction unless it does so in clear and plain terms. Gregory v. Ashcroft, 501 U.S. 452, 461 (1991). Although this principle has often been invoked where the issue is a purported congressional abrogation of the states' Eleventh Amendment immunity, see, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985), or a repeal of habeas jurisdiction, see, e.g., St. Cyr, 533 U.S. at 298-99, it flows from the longstanding recognition that repeals by implication are not favored. Indeed, they are disallowed when legislation is capable of an alternative construction that is compatible with judicial review. Ex parte Yerger, 8 Wall. 85 (1869). This Court believes that this precept is apt where, as here, a defendant asserts repeal of federal subject matter jurisdiction to entertain claims under the First Amendment.
Furthermore, the Supreme Court has recognized that these presumptions are reinforced by customary canons of interpretation. Specifically, the Supreme Court has advised that "when a particular interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result." St. Cyr, 533 U.S. 299. Moreover, "if an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is `fairly possible' we are obligated to construe the statute to avoid such problems." (Id. at 299-300) (citations omitted). Both canons are in play in the present action because the government advanced the view of the IIRIRA sections that would deprive a federal court of jurisdiction to hear a constitutional claim. The consequence of this position in the present case is to negate any opportunity for plaintiffs to raise a pure question of law in any court. St. Cyr, 533 U.S. at 300 ("A construction of the amendments at issue that would entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions.") Though the government argued that the instant claims are foreclosed from jurisdiction under the INA, as amended, it failed to explain how these plaintiffs would be permitted to raise a First Amendment challenge to the Creppy Memo in the context of an immigration proceeding to which they are not parties. A statutory interpretation having the effect of precluding any judicial scrutiny of an asserted constitutional violation cannot be imposed if a reasonable alternative construction is available.
The particular statutory provisions cited by the government are found in the INA, as amended by the IIRIRA, codified at 8 U.S.C. § 1252. The first indication that these provisions do not affect this Court's jurisdiction is the title of § 1252 which, though not dispositive, states: "Judicial review of orders of removal." 8 U.S.C. § 1252. This language appears to define the scope of the provisions to follow. This appearance is confirmed in the immediately succeeding subsection, which provides:
(a) Applicable provisions
(1) General orders of removal
Judicial review of a final order of removal (other than an order of removal without a hearing pursuant to section 1225(b)(1) of this title) is governed only by chapter 158 of Title 28, except as provided in subsection (b) of this section and except that the court may not order the taking of additional evidence under section 2347(c) of Title 28. 8 U.S.C. § 1252(a)(1) (emphasis added).
Section 1252(a)(2) goes on to exclude jurisdiction, except as provided in subsection (e), over any claim "arising from or relating to the implementation or operation of an order of removal pursuant to section 1225(b)(1)." 8 U.S.C. § 1252(a)(2) (emphasis added). The language of limitation employed in these subsections is critical to defining both the scope of their application and the consequent impact of existing grants of jurisdiction. The clear import of these provisions is that they apply only to orders of removal and their consequences.
Also cited in the government's brief is § 1252(g), which provides:
(g) Exclusive jurisdiction
Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. 8 U.S.C. § 1252(g).
The government argued that the present action is one that challenges a decision of the Attorney General to commence proceedings, adjudicate cases, or execute removal orders. In fixing the scope of this provision, the Supreme Court's decision in Reno v. America-Arab Anti-Discrimination Committee 525 U.S. 471 (1999) ("AADC") is most instructive.
In AADC, the issue was whether §1252(g) deprived the district courts of jurisdiction over aliens' claims that the INS was enforcing selectively against them certain administrative requirements, in violation of the First Amendment. Interpreting the scope of § 1252(g) the Court rejected the position taken by both parties, which was "the unexamined assumption that § 1252(g) covers the universe of deportation claims - that it is a sort of `zipper' clause that says `no judicial review in deportation cases unless this section provides judicial review.'" (Id. at 482). Rather, the Court held that § 1252(g) applies to three discrete actions that may be taken by the Attorney General, namely, to commence proceedings, adjudicate cases, or execute removal orders. (Id.) The Court acknowledged a range of other actions that may be part of the deportation process but not within the meaning of § 1252(g), such as the decisions to "open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the ...