American-Arab Anti­ Discrimination Committee v. Thornburgh – Government Misconduct – CCR Docket Fall 1992

CCR and the ACLU of Southern California challenged the constitutionality of the McCarran-Walter Act in 1987 on behalf of seven Palestinians and a Kenyan who were arrested, held without bail, and threatened with deportation because of their alleged “affiliation” with the Popular Front for the Liberation of Palestine (PFLP), a group which, according to the Immigration and Naturalization Service (INS), advocates “doctrines of world communism” and the “destruction of property.” According to government sources, the group was charged under the McCarran-Walter Act after a three year-long FBI. investigation produced no evidence of criminal activity.

In 1989, the district court issued a historic decision striking down as unconstitutional the McCarran-Walter Act provisions that the government was seeking to use against the plaintiffs. The court held that the First Amendment protects non-citizens as well as citizens in this country, and that the government is constitutionally barred from deporting non-citizens for their political beliefs and affiliations.

Congress repealed the McCarran-Walter Act in October 1990, and  replaced  it  with the Immigration Act of 1990, which  makes it a deportable offense to “engage in terrorist activity.” In light of that repeal, the court of appeals found in July 1992 that the plaintiffs no longer faced an immediate threat that the government would use the McCarran-Walter Act against them, and reversed the district court’s ruling on  procedural grounds.

Meanwhile, the INS continues to seek the deportation of two plaintiffs under the Immigration Act of 1990 and of the other six plaintiffs under non-ideological visa violation charges. Plaintiffs have argued that these visa violations should be dismissed because, in actuality, the INS seeks their deportation on the basis of alleged association with the PFLP, rather than for the visa violations themselves. Plaintiffs also charge that their ability to get a fair and impartial deportation hearing has been undermined by the involvement of the Chair of the Board of Immigration Appeals in a secret committee specifically designed to facilitate deportation of “alien activists.” The district court has denied the government’s motions to dismiss on both claims and has permitted discovery  to proceed.

In April 1991, CCR filed a constitutional challenge to the  INS’s  unprecedented attempt to use secret, undisclosed information to deny two of the plaintiffs­ Nairn Sharif and Aiad Barakat-applications for resident status under the Immigration Reform and Control  Act.   The INS refused to disclose the evidence for its allegations of their affiliation with the PFLP, claiming that the information is classified. Plaintiffs sought a preliminary injuncti on, challenging this procedure as a violation of the fundamental due process right to be apprised by the government of evidence used against them.

David Cole and Michael Ratner, with Paul Hoffman, Carol Sobel, Mark Rosenbaum, ACLU Foundation of Southern California; Dan Stormer, Marc Van Der Hout, NLG; Peter Schey, Center for Human Rights and Constitutional Law