American-Arab Anti-Discrimination Committee v. Thornburgh – Government Misconduct – CCR Docket Fall 1991

In April 1987 CCR and the ACLU of Southern California challenged the constitutionality of the McCarran-Walter Act 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.

The government defended the Act, which authorizes the deportation of non-citizens for speech and associational activities of a nature clearly protected by the First Amendment, by saying that the Bill of Rights is “constitutionally irrelevant” when the INS seeks to deport an alien.

In January 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.

In July 1991, however, the court of appeals reversed the district court’s ruling on procedural grounds, holding that it was premature to review the claim. The effect of that decision is to leave plaintiffs and all other non-citizens uncertain about the scope of their First Amendment rights, and to chill their political freedom. CCR filed a petition for rehearing.

Meanwhile, the INS continues to seek the deportation of two plaintiffs under the McCarran Walter Act 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 a11egations 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.

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