American-Arab Anti-Discrimination Committee v. Reno – Government Misconduct – CCR Docket Spring 1994

CCR and the ACLU of Southern California challenged the constitutionali­ty of the McCarran-Waller 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.” The group now known as the “L.A. Eight” as 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Congress repealed the McCarran­-Walter Act in October 1990, and replaced it with the Immigration Act of 1990, which makes it a deportable offense to ”engage in terrorist.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 charges should be dismissed because the INS is selectively seeking their deportation because of their alleged association with the PFLP. Plaintiffs also charge that their ability lo 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 activist.”

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 lNS refused to disclose the evidence for it 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.

The district court initially ruled that it had jurisdiction lo hear plaintiffs’ selec­tive proseculion claim. After plaintiffs put forth over 400 pages of evidence demonstrating that the INS had not sought to deport similarly situated immi­grants who had supported the Nicaraguan contras, the Afghanistan Mujahedin, anti-Castro Cuban groups, anrl others, the court tentatively ruled,, in August 1993, that plaintiffs had been shown selective enforcement. In November, however, the court reversed itself, at least as to Hamide and Shehadeh, and ruled that it lacked jurisdiction to hear their selective enforcement claim. Plaintiffs moved for reconsideration.

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

The court stated that “mere associa­tion with the PFLP is protected by the First Amendment” and that the PFLP was not ”solely a crirninal organization, which is exactly the basis that the gov­ernment had used to prosecute the “L.A. Eight” from the beginning.

David Cole awl 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