American-Arab Anti-Discrimination Committee v. Thornburgh – Government Misconduct – CCR Docket Fall 1990

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  “membership” or “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 year-long criminal investigation produced no evidence.

The government defended the act, which authorizes the deportation of noncitizens for speech and associational activities of a nature clearly protected by the First Amendment, by sayin g that the Bill of Rights is “constituti ona lly irrelevant ” when the INS seeks to deport an alien.

In January 1989 the district court issued a historic dec ision strikin g 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-citi zens as well as citi zens in thi s country, and that the government is constitutionally barred from deporting them for their political beliefs and affiliations. The government has appealed.

The INS continues to seek the deportation of several plaintiffs, however, under non­ ideological visa violation charges. Plaintiffs have argued that these charges should be dismissed because, in actuality, the INS seeks their deportation on the basis of alleged association with the PFLP, rather than on 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 ecret committee specifically designed to facilitate deportation of “alien activists.” The district court has denied the government’s motions to dismiss and has permitted discovery to proceed.

The INS admitted to having conducted electronic, and video surveillance of plaintiffs and their attorneys in this case, and the legality of this surveillance is being challenged in a separate lawsuit, ACLU of Southern California v.Thornburgh.

David Cole, Michael Ratner; with Paul Hoffman, Carol Sobel , Mark Rosenbaum, ACLU Foundation of Southern California; Dan Stormer; Marc Van Der Hout, NLG; Wade Henderson, Hope Nakamura, ACLU; Peter Shey National Center for Immigrants Rights, Inc.