American-Arab Anti-Discrimination Committee v. Reno – Government Misconduct – CCR Docket Fall 1997

This long-standing case raises fundamental issues about the political rights of immigrants.  In landmark decisions from the U.S. Court of Appeals for the Ninth Circuit, the case has established that immigrants facing deportation are entitled to the same First Amendment rights as citizens, that the use of secret evidence violates non citizens’ due process right to associate with and support groups labeled “terrorist” by the government, so long as one does not specifically intend to further the group’s unlawful ends.

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 that, according to the Immigration and Naturalization Service (INS), advocates “doctrines of world communism” and the “destruction of property.” The group-now known as the “L.A. Eight”-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Congress repealed the McCarran-Walter Act in October 1990, and replaced it with the Immigration Act of 1990, which makes it a deportable offense to “engage in ter­rorist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, Khader Hamide and Michel Shehadeh , under the Immigration Act of 1990 (see following Docket entry) and of the other six plain­tiffs under non-ideological visa violation charges. Plaintiffs have argued that these charges should be dismissed because the INS is selectively seeking their deportation because of their alleged association with  the PFLP.

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-Naim 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 injunction, challenging this procedure as a violation of the fundamental due process right to be apprised by the gov­ernment of evidence used against them.

On January 7, 1994, the court issued two rulings against the INS: a preliminary injunc­tion against deportation proceedings against six of the eight, on selective prosecution grounds, and another preliminary injunction barring the INS from relying on undisclosed secret information in adjudicating two of the non-citizens’ applications for permanent res­ident status, on due process grounds.

The district court concluded, however, that it lacked jurisdiction to consider plain­tiffs Hamide and Shehadeh’s selective prosecution claim, because they were in the midst of an ongoing deportation proceeding.

The government appealed the prelimi­nary injunctions, and plaintiffs Hamide and Shehadeh appealed the jurisdictional ruling. While those appeals were pending, the district court granted plaintiffs summa­ry judgment on their due process chal­lenge to the use of secret evidence.

In November 1995 the Court of Appeals for the Ninth Circuit unanimously affirmed the district court’s decision bar­ ring use of secret information, and also affirmed the preliminary injunction on selective enforcement grounds. It squarely rejected the government’s  arguments that non-citizens deserve less first amendment protection than citizens, and held that the government could not single plaintiffs out for associating with the PFLP unless it showed that they had “specific intent” to further the PFLP’s unlawful ends .

The Court of Appeals also reversed the district court’s holding that it lacked juris­diction to hear plaintiffs Hamide and She­hadeh’s selective prosecution claims, and remanded the case to the district court.

When the case returned to the district court, the government submitted some 10,000 pages of evidence, much of it records of surveillance of the plaintiffs, and argued that in light of this evidence the preliminary injunction should be dissolved, because the government was justified in sin­gling plaintiffs out. The evidence, however, showed only that plaintiffs had distributed literature, participated in demonstrations, and held political dinners at which money was raised for humanitarian aid. It did not include any evidence that plaintiffs had sought to further the PFLP’s unlawful aims. In April 1996, therefore, the district court reaffirmed the injunction, and also extend­ed it to cover Hamide and Shehadeh.

The government appealed once again, and that appeal is now pending before the Ninth Circuit. The government now argues that no one-citizen or non-citizen- has a first amendment right to support the lawful activities of a foreign “terrorist” group. The government is using the appeal as a test case to support the constitutionality of a sweeping new provision of the 1996 anti-ter­rorism law, which makes it a crime, punish­ able by 10 years in prison, for anyone to provide humanitarian aid to a group labeled “terrorist” by the executive branch.

In the district court, discovery is pro­ceeding on the selective prosecution claims of the other six plain tiffs. In the course of discovery, plaintiffs have uncovered evi­dence that the FBI and INS expressly sought to deport the “L.A. Eight” in order to “disrupt” their pro-Palestinian political activities, and subjected plaintiffs to exten­sive and unlawful surveillance. In addition, the former District Director of the INS, now retired, has filed a declaration in the case admitting that plaintiffs were singled out for their alleged PFLP associations.

While the government’s appeal was pending, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. INS promptly moved to dismiss plaintiffs’ constitutional challenge, arguing that under “court-stripping” provisions in the 1996 Act, the courts lacked jurisdiction to review the INS’s actions. In January 1997, the district court rejected the government’s motion, reasoning that plaintiffs have a constitutional right to immediate  judicial relief on their claims that  the government has targeted them for First Amendment activities. The government also appealed that decision.

On July 10, 1997, the Ninth Circuit unanimously ruled against the government on both appeals. It ruled that the new Act did not bar judicial review of plaintiffs’ First Amendment claims.  And it squarely held that the First Amendment protects the right of all persons in the United States to support so-called “terrorist” groups , as long as the individuals do not specifically intend to further the group’s unlawful ends. It therefore affirmed the injunction against deportation for a second time.

The government filed a petition for rehearing with the Ninth Circuit in August 1997. The case proceeds to the district court, where plaintiffs are completing discovery and will then seek a permanent injunction.

David Cole and Michael Ratner; with Paul Hoffman, CaroSobelMark Rosenbaum, ACLU Foundation oSouthern California; Marc Van Der Hout, NLG; Peter Schey, Center for Human Rights and Constitutional  Law; John Walker oSonnenscheinNath Rosenthal