Appendix — Reno v. American-Arab Anti-Discrimination Comm.
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OZ 1252 sy 3 1998
OFF IES tj? Pei
No.
In the Supreme Court of the United States
OCTOBER TERM, 1997
JANET RENO, ET AL., PETITIONER
AMERICAN-ARAB ANTI-DISCRIMINATION
COMMITTEE, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
APPENDIX TO THE
PETITION FOR A WRIT OF CERTIORARI
SETH P. WAXMAN
Solicitor General
FRANK W. HUNGER
Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
MALCOLM L. STEWART
Assistant to the Solicitor
General
DOUGLAS N. LETTER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
TABLE OF CONTENTS
Appendix A (court of appeals’ opinion dated
July 10, 1997)
Appendix B (district court’s order re defendants’
motion to dismiss dated Feb. 7, 1997)
Appendix C (district court’s order granting plain-
tiffs’ motion for a preliminary injunction dated
Apr. 29, 1996)
Appendix D (court of appeals’ opinion dated
Nov. 8, 1995)
Appendix E (district court’s amended order dated
Jan. 7, 1994)
Appendix F (district court’s order dated
Jan. 7, 1994)
Appendix G (district court’s order granting motion
for preliminary injunction dated Jan. 7, 1994) ..
Appendix H (court of appeals’ opinion dated
July 20, 1992)
Appendix I (district court’s opinion dated
Aug. 31, 1989)
Appendix J (court of appeals’ order dated
Dec. 23, 1997)
Appendix K (constitutional and statutory provi-
sions)
APPENDIX A
UNITED STATES COURT OF APPEALS
NINTH CIRCUIT
Nos. 96-55929, 97-55479
AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE,
ET AL., PLAINTIFFS
AND
AIAD BARAKAT; NAIM SHARIF; KHADER MUSA HAMIDE;
NUANGUGI JULIE MUNGAI; AyM MustTAFA OBEID;
AMJAD OBEID; MICHEL IBRAHIM SHEHADEH; BASHAR
AMER, PLAINTIFFS-APPELLEES
v.
JANET RENO, ATTORNEY GENERAL; HAROLD EZELL;
C.M. MccuLLOUGH; Doris Mase "a _ COMMISSIONER,
INS; ERNEST E. GUSTAFSOD. i~ALLY AND IN HIS
CAPACITY AS Past Dista - UIRECTOR OF THE
IMMIGRATION AND NATURALIZATION SERVICE; RICHARD
K. Rocers, District Director, PERSONALLY AND IN
HIS CAPACITY AS DIsTRICT DIRECTOR OF THE
IMMIGRATION AND NATURALIZATION SERVICE; GILBERT
REEVES, PERSONALLY AND IN HIS CAPACITY AS AN
OFFICER OF THE IMMIGRATION AND NATURALIZATION
SERVICE; IMMIGRATION AND NATURALIZATION SERVICE,
DEFENDANTS-APPELLANTS
{Argued and Submitted June 23, 1997]
[Decided July 10, 1997]
(la) -
2a
Before: D.W. NELSON and Cansy, Circuit Judges,
and TANNER, District Judge.”
D.W. NELSON, Circuit Judge:
The central issues in this case are (1) whether 8
U.S.C. § 1252(g), as amended by the recently enacted
Illegal Immigration Reform and Immigrant Respon-
sibility Act of 1996 (““ITRIRA”), Pub.L. No. 104-208,
110 Stat. 3009, applies retroactively; and (2) whether
the provision eliminates federal jurisdiction over a
case such as this one, in which aliens have filed a
federal suit challenging deportation proceedings on
First Amendment grounds before a final order of
deportation has been issued. We conclude that sub-
section (g) applies to pending cases but that the
provision does not bar jurisdiction in this case.
Because subsection (g) states that it applies “except
as provided in this section,” we conclude that the
amended version of 8 U.S.C. § 1252(f), which permits
certain collateral challenges to INS action, also
applies by incorporation. We find that subsection (f)
allows the instant suit because the factual record for
the Plaintiffs’ First Amendment claims cannot be
developed in administrative proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises from the decision of the Immigra-
tion and Naturalization Service (“INS”) to commence
deportation proceedings against seven native Pales-
tinians and one native Kenyan affiliated with the
Popular Front for the Liberation of Palestine
(“PFLP”). The complete factual history of this case
is set forth in this court’s~prior opinion affirming the
" The Honorable Jack E. Tanner, Senior District Judge for
the Western District of Washington, sitting by designation.
3a
grant of a preliminary injunction to six of the aliens
on First Amendment grounds. See American-Arab
Anti-Discrimination Committee v. Reno, 70 F.3d
1045, 1066 (9th Cir.1995) (“American-Arab I”). To
summarize, briefly:
The eight named aliens in this case, Aiad Barakat,
Naim Sharif, Khader Musa Hamide, Nuangugi Julie
Mungai, Ayman Mustafa Obeid, Amjad Obeid, Miche!
Ibrahim Shehadeh, and Bashar Amer, (“Plaintiffs”),
have participated in PF LP events to varying degrees.
The PFLP is an international organization with ties
to Palestine, and which the district court concluded is
engaged in a wide range of lawful activities, including
the provision of “education, day care, health care, and
social security, as well as cultural activities, publica-
tions, and political organizing.” The government
avers that the PF LP is an international terrorist and
communist organization, but does not dispute the
district court’s finding that the organization con-
ducts lawful activities.
In January, 1987, the INS arrested the Plaintiffs
and initiated deportation proceedings against them.
Six of the Plaintiffs in this case, Barakat, Sharif,
Mungai, Ayman Obeid, Amjad Obeid, and Amer, (“the
Six”) were living in this country under temporary
student or visitor visas at the time that this case was
filed. The remaining two, Hamide and Shehadeh, were
permanent resident aliens. The INS charged all of
the Plaintiffs under the McCarran-Walter Act of 1952
(“1952 Act”), which provided for the deportation of
aliens “who advocate the economic, international,
and governmental doctrines of world communism.”
8 U.S.C. § 1251(a)(6)(D) (1988). In addition, the INS
charged the Six with non-ideological, technical visa
da
violations. Former FBI director William Webster
testified to Congress that “ {alll of them were ar-
rested because they are alleged to be members of a
world-wide Communist organization which under the
McCarran Act makes them eligible for deportation....
[I}f these individuals had been United States citizens,
there would not have been a basis for their arrest.’”
Hearings before the Senate Select Committee on
Intelligence on the Nomination of William H.
Webster, to be Director of Central Intelligence, 100th
Cong., Ist Sess. 94, 95 (April 8, 9, 30, 1987; May 1,
1987), quoted in American-Arab I, 70 F.3d at 1053.
The INS subsequently dropped the ideological
charges against the Six and reformulated the 1952
Act charges against Hamide and Shehadeh. Shortly
thereafter, INS regional counsel William Odencrantz
indicated “that the change in charges was for tactical
purposes and that the INS intends to deport all eight
plaintiffs because they are members of the PF LP.”
American-Arab I, 70 F.3d at 1053.
Following the repeal of the 1952 Act, the INS com-
menced proceedings against Hamide and Shehadeh
under the “terrorist activity” provision of the Immi-
gration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978
(Nov. 29, 1990), codified as amended at 8 U.S.C.
§ 1251(a)(4)(B) (rendering deportable “{aJny alien who
has engaged, is engaged, or at any time after entry
engages in terrorist activity”).'
' For the purposes of the 1990 Act, terrorist activity con-
sists of the commission
in an individual capacity or as a member of an organization,
an act of terrorist activity or an act which the actor knows,
or reasonably should know, affords material support to any
5a
The Plaintiffs filed this federal action to contest
the deportation proceedings on First Amendment
grounds. They claimed that the INS had singled them
out for selective enforcement of the immigration laws
in retaliation for their constitutionally protected
associational activity. The district court held that it
lacked jurisdiction over the claims of Hamide and
Shehadeh but granted a preliminary injunction stay-
ing the immigration proceedings against the Six. On
appeal, this court upheld the injunction and concluded
that the court had jurisdiction over the claims of
Hamide and Shehadeh. American-Arab I, 70 F.3d at
1071. The district court then entered an injunction
staying the proceedings against Hamide and
Shehadeh.
The government now appeals the district court’s
decision refusing to dissolve the existing preliminary
injunction and granting the injunction in favor of
Hamide and Shehadeh. Relying on new evidence
submitted to the district court following this court’s
decision in American-Arab I, the government argues
that the deportation proceedings were initiated for
permissible reasons. Specifically, the government
cites to materials detailing the Plaintiffs’ support of
PFLP fundraising activities and argues that under
the applicable First Amendment standard, the Plain-
tiffs may be sanctioned for this behavior.
In addition, while this appeal was pending, the gov-
ernment filed motions to dismiss the case both with
the district court and with this panel. The govern-
individual, organization, or government in conducting a
terrorist activity at any time.
8 U.S.C. § 1182(a)(3)(B)iii).
6a
ment contends that 8 U.S.C. § 1252(g), as amended by
IIRIRA, deprives the federal courts of jurisdiction
over all claims such as those at issue here, except on
review of final deportation orders. The district court
has determined that the new statute does not
eliminate jurisdiction in this case, and the appeal of
the district court’s decision has been consolidated
with this case.
STANDARD OF REVIEW
The interpretation of a statute is a question of law,
which we review de novo. United States v. Doe, 109
F.3d 626, 629 (9th Cir.1997).
We review a decision regarding a preliminary
injunction for an abuse of discretion. Does 1-5 v.
Chandler, 83 F.3d 1150, 1152 (9th Cir.1996). A district
court abuses its discretion “if the court bases its
decision on an erroneous legal conclusion or on
clearly erroneous findings of fact.” American-Arab
1, 70 F.3d at 1062.
DISCUSSION
I. Jurisdiction
IIRIRA amends section 242(g) of the Immigration
and Nationality Act (“INA”), 8 U.S.C. § 1252(g), to
provide:
(g) Exclusive jurisdiction
Except as provided in this section and not-
withstanding any other provision of law, no court
shall have jurisdiction to hear any cause or claim
by or on behalf of any alien arising from the
decision or action by the Attorney General to
commence proceedings, adjudicate cases, or
Ta
execute removal orders against any alien under
this chapter.
Pub.L. No. 104-208, § 306(a). The government argues
that subsection (g) applies retroactively and elimi-
nates federal jurisdiction over this case at this stage
in the proceedings. While we agree that subsection
(g) applies, we hold that it does not deprive the court
of jurisdiction in this case.
IIRIRA explicitly provides for the retroactive
application of subsection (g).’ Section 306(c) states
that
the amendments made by subsections (a) and (b)
shall apply to all final orders of deportation or
removal and motions to reopen filed on or after the
date of the enactment of this Act and subsection
(g) of section 242 of the Immigration and Nation-
ality Act (as added by subsection (a)) [8 U.S.C. §
1252(g)], shall apply without limitation to claims
arising from all past, pending, or future
exclusion, deportation, or removal proceedings
under such Act.
Pub.L. No. 104-208, § 306(c) (emphasis added). Thus,
the provision carves out an exception to the general
rule, specified in section 309(c), that IIRIRA does not
apply to pending cases.*
2 As IIRIRA expressly addresses the retroactivity of the
relevant jurisdictional provision, we need not apply the default
rules elaborated in Landgraf v. USI Film Prods., 511 U.S. 244,
280-81, 114 S.Ct. 1483, 1505, 128 L.Ed.2d 229 (1994).
8 Section 309(c) provides:
(c) Transition for Aliens in Proceedings (1) General Rule
that New Rules Do Not Apply.—Subject to the succeeding
provisions of this subsection, in the case of an alien who is in
8a
Two circuits already have drawn this conclusion.
The D.C. Circuit recently held that in a federal suit
challenging the execution of a deportation order, the
provision governed even though Congress enacted
IIRIRA “[{sjubsequent to the District Court hear-
ing.” Ramallo v. Reno, 114 F.3d 1210, 1213 (D.C. Cir.
1997). And in a decision holding that the effective date
of amended 8 U.S.C. § 1252(g) was the same as the
rest of the IIRIRA amendments (April 1, 1997), the
Seventh Circuit has concluded that “the reference to
subsection (g) in section 306(c) is meant only to pro-
vide an exception to section 309(c)’s nonretroactivity,
so that when IIRA comes into effect on April 1, 1997,
subsection (g) will apply retroactively, unlike the
other subsections.” Lalani v. Perryman, 105 F.3d
334, 336 (7th Cir. 1997). We follow the D.C. and
Seventh Circuits and conclude that subsection (g)
applies retroactively.
We also conclude, however, that subsection (g)
incorporates certain exceptions when it applies to
pending cases. Subsection (g) states that “except as
provided in this [new] section, [8 U.S.C. § 1252],” no
court can consider any claim arising from a decision
of the Attorney General “to commence proceedings,
adjudicate cases, or execute removal orders against
any alien.” The provision thus expressly contem-
exclusion or deportation proceedings as of the title III-A
effective date [April 1, 1997]-
(A) the amendments made by this subtitle shall not
apply, and
(B) the proceedings (including judicial review thereof)
shall continue to be conducted without regard to such
amendments.
9a
plates the applicability of other jurisdictional amend-
ments to 8 U.S.C. § 1252. It is true that retroactive
application of the entire amended version of 8 U.S.C.
§ 1252 would threaten to render meaningless section
306(c) of IIRIRA, which provides that in general, the
narrow set of jurisdictional reforms codified at 8
U.S.C. § 1252 do not govern in pending cases. Yet a
reading of subsection (g) that did not incorporate any
exceptions would contradict the plain meaning of the
text of (g).
Moreover, such a reading would be illogical.
Divorced from all other jurisdictional provisions of
ITRIRA, subsection (g) would have a more sweeping
impact on cases filed before the statute’s enactment
than after that date. Without incorporating any
exceptions, the provision appears to cut off federal
jurisdiction over all deportation decisions. We do not
think that Congress intended such an absurd result.
We believe that when it applies to pending cases, (g)
must apply along with at least some of the other
provisions of section 1252, as amended by IIRIRA.
We must consider, then, which provisions of the
amended version of 8 U.S.C. § 1252 are incorporated
by reference into subsection (g) and whether any of
these provisions preserve federal jurisdiction in this
ease. One candidate is 8 U.S.C. § 1252(f), which
provides:
(f) Limit on injunctive relief
Regardless of the nature of the action or claim or
of the identity of the party or parties bringing the
action, no court (other than the Supreme Court)
10a
shall have jurisdiction or authority to enjoin or
restrain the operation of the provisions of part IV
of this subchapter, as amended by the Illegal
Immigration Reform and Immigrant Responsibil-
ity Act of 1996, other than with respect to the
application of such provisions to an individual
alien against whom proceedings under such part
have been initiated.
Pub. L. No. 104-208, § 306(a) (emphasis added).‘ Be-
cause this case involves individual aliens against
whom deportation proceedings have been initiated,
subsection (f) would appear to allow federal jurisdic-
tion over the Plaintiffs’ claims.
In determining whether subsection (f) applies, and
in interpreting its meaning, we are guided by the
well-established principle that where possible, ju-
risdiction-limiting statutes should be interpreted to
~preserve the authority of the courts to consider
constitutional claims. The Supreme Court has stated
unequivocally that “serious constitutional ques-
tion{s}] . . . would arise if a federal statute were
construed to deny any judicial forum for a colorable
constitutional claim.” Webster v. Doe, 486 U.S. 592,
603, 108 S. Ct. 2047, 2053, 100 L.Ed.2d 632 (1988)
(internal quotation and citation omitted); see also
Bowen v. Michigan Academy of Family Physicians,
476 U.S. 667, 681 & n. 12, 106 S. Ct. 2133, 2141 & n. 12,
90 L.Ed.2d 623 (1986) (construing Medicare statute as
permitting judicial review of regulations promulgated
under the statute); Johnson v. Robison, 415 U.S. 361,
* “Part IV of this subchapter” refers to statutory provisions
governing inspection, apprehension, examination, exclusion,
and removal of aliens. See 8 U.S.C. §§ 1221-1251.
lla
373-74, 94 S. Ct. 1160, 1168-69, 39 L.Ed.2d 389 (1974)
(interpreting statute appearing to bar all review of
veterans-benefits determinations as permitting judi-
cial review of constitutional challenges due to lack of
“clear and convincing” evidence that Congress in-
tended to eliminate review of constitutional claims).
Under subsection (f), individual aliens would appear
to be able to seek judicial review of constitutional
claims such as those at issue here.
The government contends that subsection (g) alone
applies and that the provision does not cut off federal
review of constitutional claims because it allows
courts to consider such claims on review of final
orders of deportation. The difficulty with this
position is that the text of (g) alone does not appear to
authorize judicial review of final orders of deporta-
tion. The provision can be read as authorizing such
review only if it is read in conjunction with other
subsections, such as the amended version of 8 U.S.C.
1252(b)(9), which provides:
Judicial review of all questions of law and fact,
including interpretation and application of consti-
tutional and statutory provisions, arising from
any action taken or proceeding brought to remove
an alien from the United States under this chapter
shall be available only in judicial review of a final
order under this section.
Pub.L. No. 104-208, § 306(a). The government
makes the alternative argument that if subsection
(b)(9) governs, the provision clearly limits judicial
review, including review of all constitutional claims,
to final orders of deportation.
12a
We disagree. Even if subsection (b)(9) applies along
with subsection (g), we believe that subsection (f)
must be incorporated as well, and that (f) must be
read to preserve judicial review of constitutional
claims such as the ones at issue here. Any other
reading would present serious constitutional prob-
lems. As we determined in American-Arab I, and as
the government has conceded, neither the immigra-
tion judge (“IJ”) nor the Board of Immigration
Appeals (“BIA”) has the authority to consider a
selective enforcement claim during a deportation
proceeding. American-Arab I, 70 F.3d at 1055. More-
over, a selective enforcement claim is not purely legal
but rather requires factual proof. Jd. Thus, the
factual record necessary to the adjudication of such a
claim would not be available to a federal court
reviewing a final deportation order. Jd. at 1055-56.
In McNary v. Haitian Refugee Center, Inc., the
Supreme Court drew a similar conclusion. 498 U.S.
479, 483-84, 111 S. Ct. 888, 891-92, 112 L.Ed.2d 1005
(1991). At issue in McNary was a provision of the
INA that the government argued limited judicial
review to final orders of deportation. Because the
factual record necessary to the consideration of the
plaintiffs’ constitutional and procedural statutory
claims could not be developed in administrative pro-
ceedings, the Court construed the provision as pre-
serving general federal jurisdiction over the claims at
issue in the case. Jd. at 493-94, 111 S. Ct. at 896-97.
The government’s argument that 28 U.S.C.
§ 2347(b)(3) enables federal appellate courts to remedy
the factfinding deficiencies of administrative deporta-
tion proceedings in cases such as this one is unper-
suasive. Section 2347(b)(3) allows an appellate court
13a
reviewing an agency determination to transfer pro-
ceedings to a district court for additional factual
development in certain circumstances. However, we
have held that this provision is not available on review
of deportation proceedings. American-Arab I, 70 F.3d
at 1056-57; Ghorbani v. INS, 686 F.2d 784, 787 n. 4 (9th
Cir. 1982). Because the INA limits appellate review
to the administrative record, the statute “precludes
application of the procedures . . ._ that permit
transfer of a case to a district court for a hearing,
under circumstances set forth at 28 U.S.C.
§ 2347(b)(3).” Id. While ITRiRA repeals 8 U.S.C.
§ 1105a(a), which contained the provision cited in
American-Arab I and Ghorbani confining appellate
review to the administrative record, IIRIRA adopts
the same requirement. 8 U.S.C. § 1252(b)(4)(A)
(“(T]he court of appeals shall decide the petition only
on the administrative record on which the order of
removal is based.”) Thus, the statutory basis for
American-Arab I and Ghorbani remains the same,
and these decisions still control.
In addition, IIRIRA expressly forecloses the
appellate courts from remanding such cases to the LJ
for further factual development under a related pro-
vision, 28 U.S.C. § 2347(c) (allowing y gre —_ to
remand to agency for further factual development in
certain pte. came At See 8 U.S.C. § 1252(a)(1)
(as amended). The government’s argument that
IIRIRA’s express preclusion of section 2347(c) pro-
ceedings by negative inference allows proceedings
under section 2347(b)(3) does not make sense because
the express statutory elimination of section 2347(b)(3)
proceedings then would have been unnecessary.
Prior to the enactment of IIRIRA, while some cir-
lda
cuits had allowed remand under section 2347(c), even
those circuits which permitted remand to the agency
under section 2347(c) did not allow proceedings under
section 2347(b)(3). See American-Arab I, 70 F.3d at
1057; Coriolan v. INS, 559 F.2d 993, 1008 (5th Cir.
1977). Thus, Congress needed to act only to cut off
the availability of section 2347(c).
Nor does review of a final order of deportation by
habeas corpus offer adequate redress for the Plain-
tiffs’ claimed constitutional injuries. The limitations
of the new statute on habeas relief remain unclear.
See, e.g., Duldulao v. INS, 90 F.3d 396, 399 n. 4 (9th
Cir. 1996) (declining to reach issue of whether section
440(a) of Anti-Terrorism and Effective Death Penalty
Act (“AEDPA”), as incorporated by IIRIRA, limits
habeas review); see also Yang v. INS, 109 F.3d 1185,
1196 (7th Cir. 1997). Some form of statutory habeas
relief may remain available, see Fernandez v. INS,
113 F.3d 1151, 1155 (10th Cir. 1997); Salazar-Haro v.
INS, 95 F.3d 309, 311 (3d Cir.1996), cert. denied, ——
U.S. ——, 117 S. Ct. 1842, 187 L.Ed.2d 1046 (1997);
Hincapie-Nieto v. INS, 92 F.3d 27, 31 (2d Cir. 1996),
and, indeed, in certain cases habeas review may be
constitutionally required, see Chow v. INS, 113 F.3d
659, 668 (7th Cir. 1997); Kolster v. INS, 101 F.3d 785,
790-91 (1st Cir. 1996). Some courts have relied on the
likely availability of habeas to preserve the constitu-
tionality of the jurisdiction-narrowing provisions of
the new statute. See, e.g., Ramallo, 114 F.3d at 1214;
Chow, 113 F.3d at 668. However, even assuming that
habeas relief remains available, it would not provide a
sufficient avenue for review of the Plaintiffs’ claims
in this case. Although habeas was available under the
old statutory structure, in American-Arab / this
l5a
court held that prompt judicial review of the
Plaintiffs’ claims was required because violation of
Plaintiffs’ First Amendment interests would amount
to irreparable injury that “cannot be vindicated by
post-deprivation remedies.” American-Arab I, 70
F.3d at 1057.
In sum, we conclude that while subsection (g)
applies to pending cases, it incorporates subsection
(f). Moreover, even if (b)(9) is incorporated along with
(f), we read (f) as permitting federal review of con-
stitutional claims such as those at issue here, be-
cause no other avenues of meaningful federal review
remain available. Accordingly, the district court may
retain jurisdiction over this case.
Il. Preliminary Injunction
This court already has upheld the preliminary
injunction in favor of the Six. In American-Arab I,
we held that “(the aliens’ First Amendment rights
are subject to irreparable harm because of the prose-
cution, and they have a strong likelihood of success on
their claim that the INS has selectively enforced the
immigration laws in retaliation for their exercise of
constitutionally protected rights.” 70 F.3d at 1066.
We reached this conclusion because we affirmed the
district court’s finding that the Plaintiffs had made
out a prima facie case of selective enforcement by
showing (1) others similarly situated were not prose-
cuted (disparate impact)’ and (2) the prosecution was
5 The district court selected as a control group “those aliens
who have either violated non-ideological provisions or are asso-
ciated with terrorist organizations whose views the govern-
ment tolerates.” American-Arab 1, 70 F.3d at 1063. Before the
district court, the Plaintiffs introduced copious evidence that
the government did not seek to deport aliens affiliated with
l6a
based on an impermissible motive (discriminatory
motive). Jd. at 1062. We determined that the Plain-
tiffs had made a sv“ficient showing of discriminatory
motive by demonstrating that the government tar-
geted them “because of their associational activities
with particular disfavored groups,” and because the
government did not establish that the Plaintiffs had
the “specific intent to further [any alleged] —
illegal aims” of those groups. /d. at 1063 (quoting
Healy v. James, 408 U.S. 169, 186, 92 S.Ct. 2338, 2348,
33 L.Ed.2d 266 (1972)). Following our decision, the
district court granted an additional preliminary in-
junction that included Hamide and Shehadeh.
The government has now presented new evidence in
the district court showing that the Plaintiffs partici-
pated in fundraising activities for the PFLP. The
government argues that the submission of this
evidence has two consequences: First, the govern-
ment contends that there is no longer sufficient
evidence to sustain the district court’s finding of
disparate impact. Second, the government maintains
that the standard under which the district court
analyzed the evidence of discriminatory motive is no
longer applicable. In evaluating the preliminary
injunction in favor of the Six, we need not consider
either of the government’s arguments. As applied to
groups such as the Nicaraguan Contras, the Afghanistan
Mujahedin, the Mozambique RENAMO, anti-Castro Cuban
groups, and the Vietnamese Montagnards, which have advo-
cated violence and the destruction of property. The Plaintiffs
also submitted evidence showing that the government rarely
took action against nonresident aliens for technical visa
violations.
17a
the preliminary injunction in favor of Hamide and
Shehadeh, both arguments are without merit.
A. Preliminary injunction in favor of the Six
With respect to the preliminary injunction granted
in favor of the Six, we need not address either of the
government’s arguments. The government has not
demonstrated changed circumstances. See Favia v.
Indiana Univ. of Pennsylvania, 7 F.3d 332, 387 (3d
Cir. 1993) (noting that modification of a preliminary
injunction requires changed circumstances that
would render continuance of injunction in its original
form inequitable); Tanner Motor Livery, Ltd. v. Avis,
Inc., 316 F.2d 804, 810 (9th Cir. 1963) (same).
Moreover, it is improper to use a motion to dissolve an
existing preliminary injunction to “try . . . to reliti-
gate on a fuller record preliminary injunction issues
already decided.” American Optical Co. v. Rayex
Corp., 394 F.2d 155, 155 (2d Cir.1968).
The district court concluded, and the government
does not appear to dispute, that “the government’s
new 10,000-page submission was available to the
government at the time the preliminary injunction
was entered; the government simply chose not to
litigate the facts at that time.” Up until that point,
the government had argued that the Plaintiffs did not
possess the same First Amendment rights as citi-
zens. Because the only change in circumstances is of
the government’s own making, resulting from its
decision to change its litigation strategy, we conclude
that it is equitable to continue the original injunction
staying proceedings against the Six without consid-
eration of the new evidence.
18a
B. Preliminary injunction in favor of Hamide and
Shehadeh
1. Disparate impact
The government contends that the district court’s
finding of disparate impact is clearly erroneous
because the Plaintiffs have failed to produce sufficient
evidence showing that the INS refrained from
deporting fundraisers in other terrorist organiza-
tions. Yet the government does not dispute the
district court’s conclusion that the INS sought to
deport the Plaintiffs because of mere membership in
the PFLP. As Plaintiffs did show that members of
numerous other organizations advocating violence
and the destruction of property were not deported, the
comparison with aliens who engaged in fundraising
for other terrorist organizations is unnecessary.
Even if such a comparison were required, the
Plaintiffs have produced sufficient evidence to this
effect. The Plaintiffs identified Toryalai Ali, a per-
manent resident alien living in San Diego who
represented a Mujahedin guerrilla organization and
who contributes approximately half of his income to
the group. In addition, the Plaintiffs introduced
evidence to show that the government did not seek to
deport aliens who distributed a newsletter designed to
build support for the Nicaraguan contras and which
included an appeal to send money to support the
Nicaraguan Democratic Forces. The Plaintiffs also
submitted asylum files obtained in discovery dem-
onstrating that the INS did not move to deport 59 out
of 65 members and material supporters of the Contras
and Mujahedin.
19a
The government’s assertion that “the district
court had no evidence regarding a proper control
group for Hamide and Shehadeh, who are permanent
resident aliens” is also incorrect. As discussed above,
the record contained evidence that Toryalai Ali, a
permanent resident alien, was not deported despite
his leadership role and financial contributions to a
sub-group of the Mujahedin. The record contains
evidence of numerous other cases of permanent re-
sident aliens who did not face deportation proceedings
despite their support for international organizations
advocating violence and destruction of property.
The district court did not clearly err in finding that
the Plaintiffs established disparate impact.®
2. Improper motive
The district court found that, even after the gov-
ernment made its supplemental evidentiary submis-
sion, there was “no evidence in the record that could
have led a reasonable person to believe that any of the
plaintiffs had the specific intent to further the
PFLP’s unlawful aims.” The government does not
contest this finding. Accordingly, for the purposes of
the First Amendment analysis, we assume that the
Plaintiffs did not possess specific intent.
® The government’s suggestion that the Supreme Court’s
recent decision in United States v. Armstrong, —— U.S. ——,
116 S. Ct. 1480, 134 L.Ed.2d 687 (1996), upsets the disparate
impact finding is without merit. Armstrong does not alter the
standard for establishing disparate impact. Rather, the case
holds that failure to make any showing that similarly situated
others were not being prosecuted defeats the selective prosecu-
tion claim. Jd. at ——, 116 S.Ct. at 1487. Here, as discussed
above, the Plaintiffs submitted extensive evidence that the
government did not seek to deport similarly situated others.
20a
The government now tries to evade the specific
intent standard we articulated in American-Arab I.
Relying on the new evidence of fundraising activity,
the government contends that a more relaxed First
Amendment inquiry is appropriate. Because activity,
rather than mere association, is at issue, the govern-
ment maintains that the case should be analyzed
under the standard set forth in United States v.
O’Brien, 391 U.S. 367, 88 8S. Ct. 1673, 20 L.Ed.2d 672
(1968) (holding that government has more latitude in
restricting expressive conduct than in curtailing
pure speech).
Yet in American-Arab I we already considered this
question. We emphasized that the government was
required to show that the Plaintiffs had the “specific
intent” to engage in illegal group aims because the
Plaintiffs had demonstrated that they were targeted
for their “associational activities with particular
disfavored groups.” 70 F.3d at 1063 (emphasis added).
In making this statement, we had before us evidence
that these associational activities included fundrais-
ing. Thus, we already have made it clear that
targeting individuals because of activities such as
fundraising is impermissible unless the government
can show that group members had the specific intent
to pursue illegal group goals.
O’Brien is inapplicable in a case such as this one, in
which the restrictions are in effect content-based.
See RAV v. City of St. Paul, 505 U.S. 377, 385, 112 S.
Ct. 2538, 2543-44, 120 L.Ed.2d 305 (1992) (citing to
O’Brien and noting that “(njonverbal expressive
activity can be banned because of the action it entails,
but not because of the ideas it expresses”). Here, the
central issue is whether the government impermissi-
2la
bly targeted the Plaintiffs due to their affiliation with
the PF LP, and did not so target aliens affiliated with
other foreign-dominated organizations advocating vio-
lence and destruction of property. Thus, the strin-
gent First Amendment standard articuleted in
American-Arab I continues to apply.
Moreover, the government has not challenged the
factual finding made by the district court that the
INS targeted the Plaintiffs for their mere association
with the PFLP. Indeed, in the prior appeal the
government conceded that citizens would not have
been treated in the same fashion. American-Arab, 70
F.3d at 1063. Therefore, regardle:s of whether the
government has demonstrated that the Plaintiffs
were also targeted for fundraising activity, the
district court’s conclusion that the Plaintiffs have
made a prima facie showing of the government’s
improper motive is not clearly erroneous.
CONCLUSION
For the foregoing reasons, we conclude that
IIRIRA does not eliminate federal jurisdiction at this
stage in the proceedings. We also affirm the district
court’s decision denying the government’s motion to
dissolve the preliminary injunction on behalf of the
Six and granting the preliminary injunction on behalf
of Hamide and Shehadeh.
AFFIRMED.
22a
APPENDIX B
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CV 87-02107 SVW (Kx)
AMERICAN-ARAB ANTI-DISCRIMINATION
COMMITTEE, ET AL, PLAINTIFFS
v.
JANET RENO, ET AL, DEFENDANTS
[Filed: Feb. 7, 1997]
ORDER RE DEFENDANTS’ s:OTION TO DISMISS
!. BACKGROUND
On September 30, 1996, President Clinton signed
into law the Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996 (“the 1996 Act” or
“IIRIRA”), Pub. L. No. 104-208, 100 Stat. 3009 (1996).
Defendants rest their motion on one provision in the
ITIRIRA, § 306(a), which amends § 242(g) of the Im.
migration and Nationality Act (“INA”) (hereinafter
“subsection (g)”). They argue that this provision de-
prives this Court of its jurisdiction to entertain plain-
tiffs’ constitutional claims, and requires dismissal! of
the case and vacation of the injunctions.
Subsection (g) states:
EXCLUSIVE JURISDICTION. Except as pro-
vided in this section and notwithstanding any other
provision of law, no court shall have jurisdiction to
hear any cause or claim by or on behalf or any alien
arising from the decision by the Attorney General
to commence proceedings, adjudicate cases, or
execute removal orders against any alien under
this Act.
Section ¢ of Section 306 of the of the IIRIRA sets
forth the effective dates for the amendments to the
judicial review provisions of the INA that were made
by subsections (a) and (b) of Section 306. Section
°96(c) states
(ec) Effective Date.
(1) INGENERAL.—Subject to paragraph (2), the
amendments made by subsections (a) and (b) shall
apply as provided under section 309, except that
subsection (g) of section 242 of the Immigration
and Nationality Act (as added by subsection (a)),
shall apply without limitation to claims arising
from all past, pending, or future exclusion,
deportation, or removal proceedings under such
Act.
IIRIRA § 306(c) (as amended by Act of October 11,
1996, Pub. L. No. 104-302, 110 Stat. 3656, making tech-
nical corrections to Illegal Immigration Reform and
Immigrant Responsibility Act of 1996) (emphasis
added).
24a
As stated in Section 306(c), Section 305 establishes
the effective date provisions for Sections 306(a) and
306(b). Section 309 states:
SEC. 309 EFFECTIVE DATES; TRANSITION.
(a) IN GENERAL.—Except as provided in this
section and sections 303(b)(2), 306(c), 308(d)(2)(D),
or 308(d)(5) of this division, this subtitle and amend-
ments made by this subtitle shall take effect on the
first day of the first month beginning more than
180 days after the date of the enactment of this Act.
ITRIRA § 309(a) (emphasis added).
The government’s argument is straightforward.
The instant action arises “from the decision or action
by the Attorney General to commence [and] adjudi-
cate proceedings” against the plaintiffs, and therefore
falls squarely within the terms of the amended stat-
ute. In addition, section 306(c) of the 1996 Act makes
clear that Congress intended the amended section
242(g) to apply to pending cases. Thus according to
the plain language of section 242(g), this Court is
divested jurisdiction over all of the claims that Plain-
tiffs have made in this case.
Plaintiffs contend that under the government’s
interpretation, subsection (g) violates “Article Il,
the First Amendment, and the Due Process Clause.”
However, Plaintiffs claim that the “serious constitu-
tional questions” raised by Defendants’ reading of
subsection (g) can be avoided in several ways. Plain-
tiffs offer this Court several ways to “avoid” the al-
leged “serious constitutional- questions raised by
Defendants’ reading of subsetion (g).”
25a
(1) Defendants’ motion is premature, because
subsection (g) does not take effect until April 1,
1997. %
(2) Congress expressly provided in the IIRIRA
that none of the judicial review amendments in
§ 306 would apply to aliens in pending deportation
proceedings as of April 1, 1997. Because Plain-
tiffs are all in pending deportation proceedings,
Plaintiffs’ “proceedings (including judicial review
thereof) shall continue to be conducted without
regard to [the §306] amendments.” IIRIRA,
§ 309(c).
(3) Subsection (g) does not expressly bar review
of constitutional claims, and thus it should be
construed to preserve jurisdiction to entertain
such challenges.
(4) Subsection (g) precludes judicial review of
decisions to commence proceedings only where
such review is not otherwise “provided in this
section.” But another provision in this section,
according to Plaintiffs, explicitly provides for
injunctive relief to “an individual alien against
whom [deportation] proceedings . . . have been
initiated.” IIRIRA, § 306(a) (amending INA, §242
(f)) (“subsection f”). As individual aliens against
whom deportation proceedings have been initi-
ated, Plaintiffs argue that they are entitled under
subsection (f) to seek an injunction against the
deportation proceedings. Given that authoriza-
tion, they claim that subsection (g) does not bar
Plaintiffs’ claim.
26a
In the event that this Court finds that it cannot
avoid the constitutional issues subsection (g) raises,
Plaintiffs urge this Court to strike down the statute
as unconstitutional.
Il. Legal Analysis
A. Effective Date of Subsection (g)
1. Why the Effective Date of Subsection (g) is
Important.
Plaintiffs claim that subsection (g) does not go into
effect until April 1, 1997. Defendants claim that sub-
section (g) has been in effect ever since President
Clinton signed IIRIRA into law on September 30,
1996. Why does this dispute matter?
Plaintiffs are not just trying to buy time. They
argue both that subsection (g) does not go into effect
until April 1, 1997 and that when it does go into effect
it will not apply to Plaintiffs. ITRIRA § 309(c)(1) pro-
vides that for those aliens in deportation proceedings
as of April 1, 1997, “the amendments made by this
subtitle shall not apply,” and “the proceedings [in-
cluding judicial review thereof] shall continue to be
conducted without regard to such amendments”—i.e.,
under prior law. The government has admitted this
point elsewhere. Supplemental Brief for the Peti-
tioner at 6, INS v. Yang, 65 U.S.L.W 4009, (Nov. 13,
1996) (stating that the § 306 judicial review amend-
ments do not apply “in any case in which the adminis-
trative exclusion or deportation proceeding were in-
stituted prior to April 1, 1997”).
Defendants respond that § 306(c) dictates that
subsection (g) applies “without limitation to claims
arising from all past, pending, or future . . . deporta-
27a
tion . . . proceedings under such Act.” Plaintiffs
reply that “this must be read consistently with the
‘transition’ rules, which provide that none of the
judicial review amendments §306 applies to pending
proceedings.” The Court disagrees with Plaintiffs’
reply. There is nothing “inconsistent” in the position
that subsection (g) applies to pending cases. Plain-
tiffs have confused an exception with an inconsis-
tency. Subsection (g) clearly states that it applies
“without limitation.” The “without limitation” lan-
guage in subsection (g) makes it an exception from
§ 309(c)’s general rule that the new judicial review
rules will not apply to pending cases. There is no
logical inconsistency in reading a statute as estab-
lishing a general rule in one section and as making an
exception to that general rule in another section.
Any other reading of the statute would be “inconsis-
tent” with the “without limitation” language in
§ 306(c).
Moreover, the “transition rules” give the Attorney
General the option in pending deportation cases in
which an evidentiary has commenced to elect to pro-
ceed under the new judicial review rules, by terminat-
ing the proceedings and initiating new proceedings.
IIRIRA, § 309(c)(3). Thus, even if 309(c) does place a
limitation on § 306(c), the Attorney General could
terminate the old deportation proceeding and start
again under the new rules. Plaintiffs’ response to
this scenario is unconvincing. They claim that the
Attorney General is enjoined from this Court’s order —
from “conducting further deportation proceedings”
until plaintiffs selective prosecution claims are fi-
nally resolved. This argument, however, puts the
cart before the horse. When section 242(g) goes into
28a
effect it will strip this Court of jurisdiction over
Plaintiffs’ claims’. The Court’s previous order will no
longer have any force, and the Court will lack the
authority to order any new injunctions. Only if sub-
section (g) does not apply to Plaintiffs claims would
the Court be able to block the initiation of new pro-
ceedings under its standing injunction.
Plaintiffs further argue that subsection (f) of
ITRIRA authorizes the very type of injunctive relief
Plaintiffs seek here. Section 242 (f) precludes class-
action relief, but expressly provides for injunctive
relief for “an individual alien against whom [deporta-
tion] proceedings under such chapter have been initi-
ated.” IITRIRA, § 306(a)(2) (amending INA, § 242(f)),
Defendants respond with the claim that reading
subsection (f) to authorize Plaintiffs’ suit would ren-
der subsection (g) meaningless. Plaintiffs reply to
this argument is persuasive. Subsection (g) by its
own terms only precludes jurisdiction where its not
otherwise provided in the judicial review amend-
ments, and thus it explicitly contemplates that other
provisions will in fact provide jurisdiction. Moreover,
under Plaintiffs’ reading, subsection (g) would stil]
have meaning, for it would restrict to the court of
appeals all challenges to commencement of proceed-
ings and adjudication of cases that do not require
injunctive relief or factual development beyond the
scope of the deportation hearing. For example, an
alien who claimed that his deportation proceeding has
commenced without sufficient evidence would be
barred by subsection (g) from seeking immediate
judicial review of that claim. Similarly, an alien who
challenged the adjudication of his case by objecting to
the introduction of certain evidence would be required
29a
by subsection (g) to seek review only in the court of
appeals. But where, as here, individual aliens in
deportation proceedings challenge the very proceed-
ings themselves as selective prosecution in retalia-
tion for their exercise of First Amendment rights,
subsection (f) authorizes injunctive relief. Defen-
dants’ contrary position, according to Plaintiffs’
would render meaningless the last clause of subsec-
tion (f), permitting “an individual alien” in deporta-
tion proceedings to seek injunctive relief. In Defen-
dant’s view, an individual alien in deportation proceed-
ings could never seek injunctive relief.
However, subsection (f) doesnot take effect until
April 1, 1997. Thus, while Plaintiffs could in theory
seek an injunction under subsection (f) on April 1,
1997, nothing in subsection (f) provides a current
basis for jurisdiction. In other words, the issue this
Court faces is whether or not it has the authority to
hear this action today, not whether several months
from now it will have that power, thus, the importance
of the effective date of subsection (g). If subsection
(g) went into effect on September 30, 1996, the possi-
ble availability of subsection (f) will not avail Plain-
tiffs today.
2. The Effective Date of Subsection (g) was
September 30, 1996.
The Court bears in mind that, as a matter of statu-
tory construction, a statute is deemed effective im-
mediately absent an express provision in the statute
to the contrary. United States v. Shaffer, 789 F.2d
682, 686 (9th Cir. 1986). Thus, the Court is confronted
with three possibilities, two of which are winners for
the government’s position.
30a
(1) Subsection (g) took effect immediately on
September 30, 1996.
(2) Subsection (g) takes effect on April 1, 1997.
(3) The statute is ambiguous as to subsection
(g)’s effective date. If the statute is ambiguous,
the Court should follow the presumption that
subsection (g) went into immediate effect on
September 30, 1996.
Plaintiffs argue that Subsection (g) is just one part
of a comprehensive revision of the judicial review pro-
visions, and § 309(a) provides that the judicial review
amendments generally do not take effect until April 1,
1997.
Given the effective date language in § 309(a), unless
there is some specific contrary instruction, subsec-
tion (g) takes effect, along with the rest of the judicial
review amendments, on April 1, 1997. Defendants
point to § 306(c). Plaintiffs counter that § 306(c)
merely describes the scope of subsection (g)’s applica-
tion. It says nothing about when the provision actu-
ally takes effect, and applies without limitation to
claims arising from past, pending, and future exclu-
sion and deportation proceedings. But since nothing
in § 306(c) states that subsection (g) takes effect im-
mediately, its effective date is governed by § 309(a),
and it takes effect April 1, 1997.
Plaintiffs strengthen their reading by pointing out
that the language of subsection (g) would make no
sense if it took effect before the rest of the judicial
review provisions in § 306. Section 242(g)’s title is
“EXCLUSIVE JURISDICTION,” but if subsection
(g) took effect before the-rest of the judicial review
3la
provisions, it would deny all judicial review of the
claims described, rather than simply confirming that
jurisdiction over such claims is governed “exclu-
sively” by other sections of the judicial review amend-
ments. In addition, subsection (g)’s opening clause,
“Except as provided in this section,” .would be mean-
ingless if subsection (g) took effect before the rest of
the judicial review section—the clause would have no
referent. Thus, in order to make subsection (g) mean-
ingful, it must be read, according to Plaintiffs to take
effect at the same time that the rest of the jndicial
review section does.
Plaintiffs’ argument is not entirely convincing.
Section 309(a) establishes the general effective date
for judicial review amendments as April 1, 1997,
“except as providedin ... section . . . 306(c).”
Plaintiffs’ reading would leave the exception in
Section 309 (a) without a referent. In other words, if §
306(c) doesn’t create an exception to § 309(a), why
does § 309(a) say “except as provided in . . . section
. . . 806(c)”? Plaintiffs reply that the “exception” in
Section 309%a) for section 306(c) does not establish a
different “effective date,” but merely ensures that §
309(a) will not be read to preclude retroactive appli-
cation of subsection (g) once it becomes effective, on
April 1.
Plaintiffs’ reply, however, has not assuaged the
Court’s doubts. Their “clarification” still strips the
“exception” in Section 309%a) of meaning. If Section
306(c) indicates that subsection (g) has retroactive
effect, then it does not create an “exception” to the
start dates in Section 309(a). The retroactive effect of
a statute, as Plaintiffs themselves claim, concerns
the scope of a statute not its effective date. In other
32a
words, the statute tells the reader “to go look in
Section 306(c) for an exception to the start dates in
Section 309(a).” According to Plaintiffs, however,
The courts have created a presumption that stat-
utes go into effect immediately unless Congress ex-
pressly provides otherwise. Here the Court does not
find an express provision of Congressional intent.
Instead, the Court encounters horrid ambiguity. Ab-
sent the presumption of immediate effect, this Court
would perhaps adopt Plaintiffs’ reading as the lesser
of interpretive evils. However, with the presumption
in effect as background principle of statutory inter-
pretatic» © .s Court finds, in light of the statute’s
inhere,* ©* “‘guity, subsection (g) went into effect
imme*.tely .. Jeptember 30, 1996.
B. Presumption that Door Closing Statutes Do
Not Bar Review of Constitutional Claims.
The extent to which Congress can regulate the ju-
risdiction of the federal courts is one of the great un-
resolved issues of constitutional law. While it cannot
be doubted that Congress has the power to shape the
jurisdiction of the federal courts, it is unclear
whether Congress could shut the door on federal
court review of constitutional challenges to govern-
ment action. See, generally, Richard H. Fallon, Dan-
iel J. Metizer & David L. Shapiro, Hart and Wech-
sler’s The Federal Courts and the Federal System,
Chapter IV (4th ed. 1996). The Supreme Court has
33a
avoided ruling on the limits of Congressional power
over the jurisdiction of the federal courts by inter-
constitutional challenges arising from benefits
claims.’ The Johnson Court held that in the absence
of “clear and convincing evidence” that Congress spe-
' In Czerkies, the statute at issue, the Federal Employees
Compensation Act, provides that “[tJhe action of the Secretary
(of Labor] or his designee in allowing or denying a payment
under this [Act] is-(1) final and conclusive for all purposes and
with respect to all questions of law and fact; and (2) not subject
to review by another official of the United States or by a court
by mandamus or otherwise.” 5 U.S.C. § 8128(b). The Seventh
Cireuit, en banc, found that the statute's bar on judicial review
did not extend to constitutional claims.
® Title 38 U.S.C. § 211(a) provides:
(a) On and after October 17, 1940, except as provided in
sections 775, 784, and as to matters arising under Chapter
37 of this title, the decisions of the Administrator on any
question of law or fact under any law administered by the
Veterans’ Administration providing benefits for veterans
view any such decision by an action in the nature of man-
damus or otherwise.
34a
cifically intended to preclude review of constitutional
claims, it would not interpret a statute broadly
barring all judicial review to have that effect. 415
US. at 373-74.
Similarly, in Webster v. Doe, 108 S. Ct. 2047 (1988),
the Supreme Court held that while the National
Security Act of 1947 precluded judicial review of
statutory challenges to CIA employment decisions,
constitutional challenges to such decisions were
subject to judicial review.’ It did so notwithstanding
the fact that the Act drew no distinction between
statutory and constitutional claims. The Court held
that:
We emphasized in Johnson v. Robinson, that
where Congress intends to preclude judicial
review of constitutional claims its intent to do so
much be clear. In Weinberger v. Salfi, we reaf-
firmed that view. We require this heightened
showing in part to avoid “the serious constitu-
tional question” that would arise if a federal
® In Webster, the Respondent alleged that CIA Director’s
decision to terminate his employment violated the Administra-
tive Procedure Act (APA), 5 U.S.C. § 706, because it was
arbitrary and capricious. He also alleged that the decision to
terminate his employment deprived him of several constitu-
tional rights. Section 706 of the APA provides that review of
agency action is not available when “agency action is commit-
ted to agency discretion by law.” Section 102(c) of the Na-
tional Security Act of 1947, 61 Stat. 498, as amended, provides
that: —
[T}he Director of the Central Intelligence may, in his
discretion, terminate the employment of any officer or
employee of the Agency whenever he shall deem such
termination necessary or advisable in the interests of the
United States... .”
35a
statute were construed to deny any judicial
forum for a colorable constitutional claim.
108 S. Ct. At 2053 (citations omitted) (emphasis
added).
Kenneth Culp Davis and Richard J. Pierce sum up
the meaning of this line of cases in their authoritative
treatise on administrative law. They write,
Taken as a whole, the Court’s decisions in this
area seem to send a message to Congress: “We
do not seek a constitutional confrontation on the
question of the power of the power of the courts
to resolve disputes concerning the constitutional-
ity of your actions or of the actions you have
authorized agencies to take. We will interpret
your enactments in a manner that avoids such a
confrontation if we possibly can. If you desire a
formal resolution of the question of your ability
to preclude us from deciding disputes concerning
constitutional rights, you must use statutory
language that unequivocally requires us to re-
solve that question, e.g., actions taken pursuant
to this statute are not subject to any form of
judicial review, including review of the constitu-
tional validity of such actions.”
Kenneth Culp Davis & Richard J. Pierce, Jr., Admin-
istrative law Treatise, § 17.9 (1994).
Like the statutes reviewed in Johnson and Webster,
subsection (g) does not specifically deny jurisdiction
over constitutional claims. Nowhere in the text or in
36a
the legislative history’ does Congress express a clear
intent to preclude judicial review of constitutional
challenges to a decision to commence deportation
hearings. Thus, the Court reads subsection (g) as
preserving judicial review over constitutional claims.
The government replies to this analysis with the
argument that Section 242(g) only effects the timing
of judicial review. In other words, Section 242(g) does
not close the door to judicial review of deportation
proceedings. It merely postpones judicial review
until the end of the administrative proeess, at which
point an alien can appeal an adverse finding to a cir-
cuit court. Specifically, subsection (b)(9) provides
that “judicial review’ of all questions arising from
“any action taken or proceeding brought to remove an
alien from the United States under this title shall be
available only in judicial review of a final order sec-
tion.” Thus, one could argue, IIRIRA does not bar all
judicial review of Plaintiffs’ selective prosecution
claims, but merely defers review until Plaintiffs
appeal to a court of appeals from a final order of depor-
tation. Under this reading, Section 242(g) would en-
compass constitutional claims because a “heightened
showing” of congressional intent to reach constitu-
tional claims is required only when a statute bars all
judicial review of constitutional claims.
In support of this proposition the government cites
Thunder Basin Coal Co, v. Reich, 114 8. Ct. 771, 779-
81 (199%). In that case the Court held that a door-
closing statute in the mine-safety act blocked a non-
* The Joint House-Senate Committee Report on IIRIRA is
silent on the issue of whether Section 242(g) reaches constitu-
tional claims. H.R. Conf. Rep. 104-828.
37a
monetary due process claim. The agency that re-
viewed the mine operators’ claims was independent of
the agency that regulated the mines. This independ-
ent agency had addressed constitutional claims previ-
ously and its decisions were reviewable by a federal
court of appeals. Since the statute allowed judicial
review of final agency determinations, the Court
found that the statutory scheme in issue did “not
present the ‘serious constitutional question’ that
would arise if an agency statute were construed to
preclude all judicial review of a constitutional claim.”
Id. at 780, n. 20.
Plaintiffs argue that Judicial review of final depor-
tation orders under Subsection b(9), however, does not
provide an adequate remedy for the constitutional
claims raised in this case for three reasons. First,
Subsection b(9) does not go into effect until April 1,
1997. Second, the First Amendment claims of Plain-
tiffs cannot be adequately addressed through judicial
review of the final administrative adjudication of their
cases. Third, proper appellate review is impossible
because the statutory scheme does not allow for the
creation of a factual record which could serve as a
basis for resolving Plaintiffs’ selective prosecution
claims.
Subsection (b)(9) does not apply to Plaintiffs. It
does not go into effect until April 1, 1997. As dis-
cussed above, § 309(a) provides that unless otherwise
specified, all of the judicial review amendments take
effect on April 1, 1997. Accordingly, Plaintiffs argue
that subsection (b)(9) is not effective today, and can-
not be relied upon to provide judicial review for Plain-
tiffs’ constitutional claims.
38a
Plaintiffs’ argument is unrealistic. If this Court
did dismiss Plaintiffs’ claims and allowed the admin-
istrative deportation proceedings to continue, it
would take many months for a final resolution of their
cases. Certainly, subsection (b)(9) would be available
long before a final order of deportation came down for
any of the Plaintiffs.
Plaintiffs second argument, however, is decisive.
In this case, Plaintiffs have alleged that the govern-
ment initiated deportation proceedings against them
in retaliation for their exercise of their First Amend-
ment rights. This Court and the Ninth Circuit have
already found that the injury to speech and associa-
tion rights that stems from being targeted for a
deportation proceeding is irreparable, and justifies
immediate injunction relief. The Ninth Circuit held
that:
The legal and practical value of the First Amend-
ment right may be destroyed if not vindicated
before trial. “The loss of First Amendment free-
doms, for even minimal periods of time, unques-
tionably constitutes irreparable injury.” Courts
thus grant extraordinary relief because “[jJoin-
ing organizations that participate in public
debate, making contributions to them, and attend-
ing their meetings are activities that enjoy sub-
stantial First Amendment protection” so that
“the duration of a trial is an intolerably long
period during which to permit the continuing
impairment of First Amendment rights.” Even in
the context of state criminal prosecutions, where
federalism concerns raise additional barriers to
the federal courts’ exercise of equitable jurisdic-
tion, federal courts refuse to abstain in cases
39a
involving a bad faith prosecution that has little
expectation of a valid conviction or is initiated to
retaliate for or discourage the exercise of consti-
tutional rights. We find that the perpetual threat
of deportation based on group affiliation consti-
tutes the kind of irreparable injury that is rele-
vant to the ripeness inquiry here.
American-Arab Anti-Discrimination Committee v.
Reno, 70 F.3d 1045, 1058 (9th Cir. 1996) (hereinafter
“AAADC v. Reno”) (citations omitted).
The Ninth Circuit upheld this Court’s preliminary
injunction in favor of six of the Plaintiffs based on its
conclusion that
The aliens have provided evidence of disparate
impact and of impermissibly motivated enforce-
ment of the immigration laws. The aliens’ First
Amendment rights are subject to irreparable
harm because of the prosecution, and they have a
strong likelihood of success on their claim that
the INS has selectively enforced the immigration
laws in retaliation for their exercise of consti-
tutionally protected rights.
Id. at 1066.
Even if a court of appeals could ultimately hear
Plaintiffs’ claim, Plaintiffs would be required to
undergo an extended deportation hearing and adminis-
trative appeal before obtaining judicial review. In the
interim, Plaintiffs would suffer irreparable injury to
constitutional rights, without access to a judicial
remedy. Thus, Section 242(g) does more than affect
the timing of judicial review. Under the Ninth Cir-
cuit’s holding, post-deprivation review of Plaintiffs’
constitutional claims is inherently inadequate. The
40a
immediate harm suffered by Plaintiffs is addressed
either now or never. If Section 242(g) reached Plain- —
tiffs claims, then it would shut the door on adequate
judicial review of their constitutional claims. If Con-
gress intended to close the door on Constitutional
claims, then, as discussed above, Congress must make
its intent clear.°
Finally, Plaintiffs argue, that even if in theory
post-deprivation judicial review was sufficient, the
statutory scheme created by Congress in the IIRIRA
does not provide an adequate record for judicial
review. Under current law, immigration judges have
no authority to adjudicate selective prosecution
eases. AAADC v. Reno, 70 F.3d at 1055-56. Neither
Congress nor the INS has altered the authority of
immigration judges. If the immigration judge cannot
develop the facts underlying a selective prosecution
claim, then the court of appeals on review cannot
decide the claim. Jd. Appellate review is limited to
“The administrative record on which the order of
removal is based.” INA, § 242(b)(4)(A), as amended.
Without a factual record, the Ninth Circuit would
have no basis for resolving Plaintiffs’ selective
prosecution claims.
Plaintiffs demolish this line of argument in their
papers. They point out that the government does not
dispute that under IIRIRA, appellate review is lim-
5 Tellingly, the government never cites AAADC v. Reno in
any of its briefs. Instead, without actually declaring its inten-
tions, the government makes a weak stab at relitigating the is-
sue of whether or not Plaintiffs’ claims warrant immediate ju-
dicial review. This issue, however, has now been decisively
settled through the decisions of this Court and the Ninth Cir-
cuit and is, in effect, res judicata.
4la
ited to the administrative record. Nor does the gov-
ernment dispute that immigration judges and the BIA
lack authority to consider selective prosecution
claims in adjudicating deportation cases. Instead,
they suggest that this problem can be averted by
Plaintiffs “proffering whatever claims or evidence
they want to the immigration courts,” and then
raising the selective prosecution claim for the first
time in the court of appeals. They also suggest that
the court of appeals could remand to a district court
to develop facts under 28 U.S.C. § 2347(b), if the court
deemed that necessary to resolve the selective en-
forcement claims.
The Court agrees with Plaintiffs that if the avail-
ability of “proffer” before the immigration judge were
sufficient to provide adequate appellate review, the
Ninth Circuit’s decision in AAADC v. Reno affirm-
ing this Court’s jurisdiction would have come out the
other way; a “proffer” to the immigration judge was
just as theoretically available then as now.
Moreover, as Plaintiffs point out, a mere “proffer”
is not sufficient to develop facts necessary for appel-
late review of constitutional claims like the selective
prosecution claim here. Plaintiffs claim requires ex-
tensive discovery, and as the central issues of motive
and selection will likely be disputed, will require an
evidentiary hearing, including the taking of testi-
mony and assessments of credibility. Since the immi-
gration judge has no authority to hear a selective
prosecution claim, the immigration judge would have
no warrant to authorize discovery on this issue, or
hear evidence and make factual findings. The court of
appeals certainly cannot order discovery, hear testi-
mony, assess credibility of witness, or make factual
42a
findings. Thus, a “proffer” could not possibly provide
the factual development necessary for resolution of
Plaintiffs selective prosecution claim.
Defendants suggest that a remand to district court
under 28 U.S.C. § 2347(b) might be appropriate. But
nothing in IIRIRA changes the Ninth Circuit’s hold-
ing that § 2347(b) “does not apply in the immigra-
tion context.” American-Arab Anti-Discrimination
Comm. v. Reno, 70 F.3d at 1057. Indeed, the IIRIRA
confirms that holding, by expressly limiting appellate
court review to “the administrative record on which
the order of removal is based.” INA, § 242(b)(4)(B). A
remand to the district court for factual findings would
directly conflict with the statute, because any facts
developed would by definition be beyond the admin-
istrative record. Thus, the appellate review the
IIRIRA provides is clearly inadequate.
III. CONCLUSION
Plaintiffs’ First Amendment injuries are immedi-
ate and cannot be addressed through post-deprivation
review. Congress can bar the door to these claims,
and bring on a serious constitutional confrontation,
only if it acts with clear purpose. No such purpose
has been displayed here, and thus, this Court finds
that Section 242(g) does not reach the constitutional
43a
claims at issue in this case. This Court DENIES the
Government’s Motion to Dismiss.
IT IS SO ORDERED.
DATED: 2/5/97
/s/ STEPHEN V._WILSON
STEPHEN V. WILSON
UNITED STATES
DISTKICT JUDGE
44a
APPENDIX C
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
No. CV 87-2107 SVW (KX)
AMERICAN-ARAB ANTI-DISCRIMINATION
COMMITTEE, ET AL., PLAINTIFFS
v.
JANET RENO, ETC., ET AL., DEFENDANTS
[Filed Apr. 29, 1996]
ORDER GRANTING PLAINTIFFS’ MOTION FOR
A PRELIMINARY INJUNCTION AS TO HAMIDE AND
SHEHADEH AND DENYING DEFENDANTS’ MOTION
TO DISSOLVE THE PRELIMINARY INJUNCTION
AS TO THE SIX
After the Ninth Circuit reversed this Court’s hold-
ing, that it lacked jurisdiction to enter a prelimi-
nary injunction as to plaintiffs Hamide and Shehadeh
(“the Two”), American-Arab Anti-Discrimination
Committee v. Reno, 70 F.3d 1045 (9th Cir. 1995)
(“AAADC”), the Two filed a renewed motion for a
preliminary injunction. Shortly thereafter, the gov-
ernment filed a motion to dissolve the preliminary
injunction that is currently in force as to plaintiffs
Mungai, Amer, Barakat, Sharif, Ayman Obeid, and
Amjad Obeid (“the Six”). The two motions were
45a
briefed together and were heard on April 8, 1996. For
the reasons that follow, the Court grants plaintiffs’
motion and denies the government’s motion.
I. BACKGROUND
Plaintiffs’ motion should be granted if the Two es-
tablish a prima facie case (or colorable showing) that
the filing of the McCarran-Walter ideological deporta-
tion charges against them in April 1987 (or the
addition in 1991 of new ideological charges under the
Immigration Act of 1990) constituted selective en-
forcement in that (1) the motivation for the charges
was the Two’s constitutionally protected association
with the PFLP; and (2) similarly situated others
were not charged. See AAADC, 70 F.3d at 1062.
The government’s motion should be granted if it
shows that changed circumstances (from the time the
preliminary injunction was entered) render the Six
unlikely to prevail on their claims that the fing of
non-ideological deportation charges against them in
January 1987 constituted selective enforcement. See,
e.g., Favia v. Indiana Univ. of Pennsylvania, 7 F.3d
332, 337 (3d Cir. 1993) (“Modification of an injunction
is proper only when there has been a change of
circumstances between entry of the injunction and
the filing of the motion that would render the continu-
ance of the injunction in its original form inequita-
ble”) (citation omitted); Tanner Motor Livery, Ltd. v.
Avis, Inc., 316 F.2d 804, 810 (9th Cir.), cert. denied,
375 U.S. 821 (1963).
A The Government’s Change in Strategy
Until now, the government’s position has been that
plaintiffs, as aliens, did not have the same First
Amendment associational rights as citizens, and thus
that plaintiffs’ association with the PFLP rendered
46a
them deportable even though (as CIA Director
William Webster admitted, Hearings before the Sen-
ate Select Committee on Intelligence on the Nomina-
tion of William H. Webster, to be Director of Central
Intelligence, 100th Cong., ist Sess. 94, 95 (April 8, 9,
30, 1987; May 1, 1987) (“Webster Testimony”)) citi-
zens could not be arrested for the same conduct. This
Court and then the Ninth Circuit both rejected this
argument, and held that plaintiffs enjoyed the same
First Amendment rights as citizens. American-
Arab Anti-Discrimination Committee v. Meese, 714
F. Supp. 1060 (C.D. Cal. 1989); AAADC, supra. Thus,
if citizens could not have been arrested consistent
with the First Amendment for the conduct engaged in
by plaintiffs, then neither could plaintiffs.
Having lost its legal argument, the government
now argues the facts. As the Ninth Circuit noted, 70
F.3d at 1063, the government never presented any
evidence about what conduct plaintiffs had engaged in;
now it must. In essence, the government now has no
choice but to argue, in spite of Webster’s testimony to
the contrary, that plaintiffs in fact did engage in
conduct that would have subjected citizens to arrest.
Il. DISCUSSION
A. Healy is the Applicable First Amendment
Standard
In its recent opinion, the Ninth Circuit set forth
the standard the government must meet in order to
prove that plaintiffs engaged in unprotected conduct:
“knowing affiliation” with an organization that en-
gaged in some unlawful activities and the “specific
intent to further those illegal aims.” 70 F.3d at 1063
(quoting Healy v. James, 408 U.S. 169, 186, 92 S. Ct.
2338, 2348 (1972)). This standard appears to be the
47a
equivalent (in the association context) of the
Brandenburg standard, which limits the punishment
of advocacy to where it is “directed to inciting or
producing imminent lawless action and is likely to
incite or produce such action.” Brandenburg v. Ohio,
389. U.S. 444, 447, 89 S. Ct. 1827, 1829 (1969). See
NAACP v. Claiborne Hardware Co., 458 U.S. 886,
920 n.56, 102 S. Ct. 3409, 3429 n.56 (1982).’
1. The PFLP Does Engage in Lawful Activities
Underlying the application of this standard is the
determination that while the PFLP engages in un-
lawful activities, it also engages in lawful activities.
Therefore, association simpliciter with the PFLP is
protected by the First Amendment. This Court has
held explicitly that:
The PFLP is not solely a criminal organization.
It does more than conduct terrorist operations.
Thus, support of the PFLP or association with
the PFLP would not be a permissible basis for
the government to use in determining whom to
prosecute.
Jan 11, 1994 Order Re: Discovery on Sel. Pros. at 7.
The government’s own evidence submitted on the
instant motions shows that the PFLP engages in
lawful activities. Among many other examples of
' At the April 8, 1996 hearing, the Court questioned the
parties with respect to the relationship between the standards
enunciated in Healy and Brandenburg. David Cole, plaintiffs’
counsel, stated that there was no authority on the question
whether a person may be punished for specifically intending to
further future, non-imminent, unlawful activity, or in other
words, whether Brandenburg offers broader protection to
agora than Healy extends to association. See Apr. 8, 1996
. at 65-66.
48a
such evidence, the Palestine Yeath Organization,
which the government claims is a front for the PF LP,
sponsors sports, games, cultural events, and political
demonstrations. Markardt Dec., Exh. 11A, p. 1027-32;
11B, p. 1036-48. The government has aiso submitted
papers seized from Evelyn Zakhary which show that
the PFLP distributes literature, sponsors educa-
tional, cultural, recreational, and political events. /d.,
Exh. E, p. 252-78. In addition, evidence submitted
years ago in this action showed that the PFLP de-
votes significant resources to lawful activities, such
as providing social services like education, day care,
health care, and social security, as well as cultural
activities, publications, and political organizing. See
Pl. Reply at 19.
Nowhere in the government’s papers does it state
that it is seeking reconsideration of this Court’s
express holding that the PFLP engages in lawful
activities. But the vast majority of the government’s
submission is intelligible only in the context of such
an argument, for its relates only to the PFLP gen-
erally, rather than to plaintiffs as individuals. The
government has submitted book-length tracts pub-
lished by the PFLP explaining its interpretation of
Marxist-Leninist ideology. It has submitted dozens
of issues of Al-Hadaf, the PFLP’s official newspaper,
none of which mention any of the plaintiffs. It has
also submitted extensive hearsay compilations of the
acts of terrorism linked to the PFLP over the years,
in none of which any of the plaintiffs are in any way
implicated.
2. The Government’s Inappropriate Attempt to
Relitigate the First Amendment Issue
49a
In other words, the government has devoted most of
its efforts to painting the PFLP as a terrorist
organization, rather than painting plaintiffs as
terrorists. But, put simply, the nefarious nature of
the PFLP is irrelevant under the Healy specific
intent standard. The government’s confusion (or
worse) is exemplified by the fact that its opening brief
did not even mention the Healy standard, even though
barely three months had passed since the Ninth Cir-
cuit had expressly held that it governed this case.
Instead, the government attempts to relitigate the
question of the applicable First Amendment standard.
It devotes much of its opening brief to arguing for the
application of a deferential “immigration context”
standard based on Kleindeinst v. Mandel, 408 U.S.
753 (1972), and Fiallo v. Bell, 430 U.S. 787 (1977),
cases which this Court and the Ninth Circuit distin-
guished as involving exclusion rather than deporta-
tion. See 714 F. Supp. at 1075-77; 70 F.3d at 1064-65.
The government contends that since the Ninth Cir-
cuit’s holding was made in the context of an appeal of
a preliminary injunction rather than a final judgment,
it is not the law of the case. Whatever the merit of
this contention, it ignores the seemingly obvious fact
that this Court is bound to follow every decision of
the Ninth Circuit. The government’s law of the case
argument is an irrelevant distraction.
In summary, then, in order to defeat plaintiffs’
motion as to the Two and to prevail on its own motion,
the government must show that plaintiffs had the
specific intent to further the PFLP’s unlawful aims.
If plaintiffs had such specific intent, the government’s
discriminatory selection of them for deportation
would be based on a permissible reason, rather than
the impermissible reason of their association with the
50a
“-PFLP? Since plaintiffs cannot prevail on the dis-
criminatory motive prong of their selective enforce-
ment claims unless the basis for the discrimination is
impermissible, plaintiffs would thus be unlikely to
prevail on such claims. If the government does not
make such a showing, the Court should (1) reaffirm
its preliminary conclusion as to the Six that the gov-
ernment’s basis for selecting them was their First
Amendment-protected association with the PFLP,
and thus deny the government’s motion; and (2) make
the same preliminary conclusion as to the Two (for
the same reasons as the Court relied upon for the
Six), and thus grant plaintiffs’ motion.°
2 Technically, plaintiffs bear the burden of persuasion on
their claim for a preliminary injunction. However, the Two
rely on the same evidence regarding discriminatory intent and
disparate impact as the Court found justified a preliminary
injunction as to the Six. The Court therefore finds that, like
the Six, the Two are likely to prevail on their selective enforce-
ment claims unless the government can show that its selection
of them was based on a permissible reason. Thus, the issues for
the two instant motions converge.
8 The government makes one additional argument as to why
plaintiffs are unlikely to prevail. It contends that the decision
to deport plaintiffs was made by Elizabeth Hacker, INS Dis-
trict Counsel in Los Angeles, and that no other INS offices or
other federal agencies were involved in the decision. If this
were true, it would mean that the control group would have to
be limited to the Los Angeles INS office, and the government
says that there is no evidence that similarly situated others
were not deported by that office. Plaintiffs would thus be un-
likely to prevail on the disparate impact prong of their selec-
tive enforcement claims.
The Court rejects this argument. Abundant evidence shows
that higher-up national and regional INS officials, as well as
representatives of the FBI, were involved in the decisionmak-
ing process. The two memoranda the Court recently held not
5la
B. The Government’s Showing
The government faces several obstacles in its at-
tempt to make the required showing. First, plaintiffs
make a strong argument that the Court should refuse
even to consider some 8500 pages of the government’s
approximately 10,000-page submission, at least as to
the Six. Second, even if the Court were to consider
the whole submission, most of it is irrelevant because
it relates only to the PFLP, rather than to the deci-
sion to deport plaintiffs, and much of the submission
is otherwise inadmissible. Finally, and most funda-
privileged are two of many examples of such evidence. See
Order to Compel, March 6, 1996. Neither of the two memos was
written to or by anyone in the Los Angeles INS office, and one
reveals the involvement of the INS commissioner himself.
While it may be technically true that an official from the Los
Angeles office signed off on the orders to show cause, it is
disingenuous to suggest that this means the decision to deport
plaintiffs was made exclusively in the Los Angeles office.
United States v. Gomez-Lopez, 62 F.3d 304 (9th Cir. 1995), on
which the government relies, is not to the contrary. In that
case, the Ninth Circuit held that circuit-wide discovery was
improper in a criminal case where the defendant had been
charged pursuant to guidelines developed solely by the iocal
United States Attorney’s Office, “without consultation with
any other USAO or with Department of Justice officials in
Washington, D.C.” Id. at 305. While in Gomez-Lopez there was
“no evidence indicating that there is communication or coordi-
nation among the USAOs within the circuit that could have
affected the decision to prosecute,” id at 307 (emphasis in
original), in the instant case there is plentiful evidence of high-
level, national coordination between INS, FBI, and DOJ offi-
cials that demonstrates quite clearly that “the decision to prose-
cute” plaintiffs was “affected” by events far beyond the con-
fines of the INS Los Angeles office. The “scope of the discov-
ery” ordered by this Court thus “bear{s] a reasonable relation-
ship to the decision” to deport plaintiffs. Jd. at 306.
52a
mentally, what “evidence” the government does have
regarding plaintiffs does not show that any of the
plaintiffs had the specific intent to further the
PFLP’s unlawful activities.
1. Should the Court Consider the Newly Sub-
mitted Evidence?
_. The government has submitted approximately
10,000 pages of documents on the instant motions.
The government produced approximately 1500 pages
of documents in discovery, most of which it included
in its 10,000-page submission. Plaintiffs argue that
the remaining 8500 pages should not be considered.
At the hearing held on August 16, 1995 on the
motion to compel filed by the Six, one issue was plain-
tiffs’ request for production of documents reflecting
upon the INS’s decision to file the deportation
charges that were in the possession of the FBI or
DOJ rather than the INS itself. The government had
produced approximately 1500 pages of documents in
discovery up to that point.‘ Plaintiffs thought other
documents existed that might be relevant to the
question of the government’s motivation in deciding
to deport plaintiffs, and they thought that some of
these might be in the possession of the FBI or DOJ.
Plaintiffs therefore asked that the INS be required to
4 Defendants produced the following: a four-volume FBI
report by SA Frank Knight, attached to Knight’s Declaration
as Exh. 45; a videotape of the St. Nicholas dinner, attached as
Exh. 16A to Knight’s Declaration; plaintiffs’ immigration files
(which plaintiffs say appear to be irrelevant to the instant
motions and which the government did not include in its 10,000
page submission); various FBI and INS memos regarding the
investigation of plaintiffs. See Pl. Appendix of Materials
Produced by Def. (March 20, 1996).
53a
produce all relevant documents, not just those in its
possession.
At the August 16 hearing, the government’s attor-
ney, Michael Lindemann, said: “We have produced al]
of the materials that INS had at hand when it made
that decision. Things that the INS never saw could
have no bearing on the INS’s decision to prosecute.”
Tr. at 7. The Court was not immediately satisfied,
and pressed the government on the question of discus-
sions between INS and other agencies. “Are you tell-
ing me that there are no documents in the possession
of the FBI or Justice Department which reflect upon
the decision to deport these people?” Lindemann an-
swered, “Your Honor, you have them all.” The Court
asked again, “So you’re saying there are no others?”
Lindemann replied, “To our knowledge, there are no
others, Your Honor.” Tr. at 8.
Thus, at the August hearing, the government in-
sisted, upon repeated questioning, that the 1500 or so
pages of documents which it had already produced
were all of the documents that reflected upon the
INS’s decision to file deportation charges against the
Six. The government insisted that any other materi-
als “could have no bearing on the INS’ decision to
prosecute.” Now, the government is attempting to in-
troduce some 8500 additional pages of documents
which, by its own admission, played no role in the
decision to file deportation charges against the Six.
The central question before the Court on the instant
motions is whether there is prima facie evidence that
the INS made that decision for an impermissible rea-
son. This is the exact same question that the discov-
ery at issue at the August hearing was intended to
illuminate. Documents of which the INS was un-
aware at the time it made that decision cannot
54a
possibly be relevant to the question of its motivation
in making the decision.°
Therefore, the government would seem to be caught
in a catch-22: either (1) the government was telling
the truth at the August 16, 1995 hearing, and all of the
8500 pages of newly-submitted documents are irrele-
vant to the question of the INS’s motivation in mak-
ing the decision to deport the Six; or (2) the govern-
ment was not telling the truth at the August 16
hearing, and some or all of the new 8500 pages might
be relevant as to the Six.
In its papers, the government responds, albeit indi-
rectly, by saying it “previously declined to submit
this factual record because a variety of jurisdictional
and other precedents convinced them that these
aliens’ claims in this Court should have been dis-
missed as a matter of law. Having failed to persuade
this Court and the Ninth Circuit Court of Appeals on
that point, defendants now comply with the Ninth
Circuit’s opinion in AAADC v. Reno, and, consistent
with this Court’s Amended Order of January 1994,
address these aliens’ claims of selective prosecution
5 At the April 8, 1996 hearing, the government noted that
the document requests at issue at the August 16, 1995 hearing
related only to the Six, not to the Two, and that there is thus
no inconsistency between the government’s 1500-page discov-
ery production and its 10,000-page submission on the instant
motions as to the Two. But the flipside of this would be that
the 8500 new pages relate only to the Two. However, at the
April 8 hearing, when asked whether it was conceding that the
8500 new pages are irrelevant as to the Six, the government
demurred. In light of that, and of the fact that the 10,000-page
submission is not differentiated according to whether it relates
to the Two or to the Six or to all plaintiffs, the Court finds the
government’s explanation less than completely persuasive.
55a
using a complete factual record.” Def. Opp. at 3. In
its reply, the government repeats this argument, con-
tending that “(t]he new factual picture presented by
the government’s submission is the ‘changed circum-
stances,’ which, along with the effect these facts have
on the applicable legal analysis, satisfy the legal
requirements for dissolving the preliminary injunc-
tion granted earlier and for denying the additional
injunction now sought by plaintiffs.” Def. Reply at 9.°
6 It should be noted that this argument does not justify
the government’s filing of the instant motion to dissolve.
“Changed circumstances” refers to matters outside a party’s
control, not changes in the party’s litigation strategy. The
latter is an improper reason to bring a motion to dissolve or
modify an injunction. United States v. Swift & Co., 286 U.S.
106, 119, 52 S. Ct. 460, 464 (1932) (“The injunction, whether
right or wrong, is not subject to impeachment in its application
to the conditions that existed at its making”). “A motion to
modify a preliminary injunction is meant only to relieve inequi-
ties that arise after the original order.” Favia, 7 F.3d at 338.
See also Building and Constr. Trades Council v. NLRB, 64
F.3d 880 (8d Cir. 1995). The substance of the government’s
new 10,000-page submission was available to the government at
the time the preliminary injunction was entered; the govern-
ment simply chose not to litigate the facts at that time. There
have been no “(1) changes in operative facts, (2) changes in the
relevant decisional law, [or] (3) changes in any applicable
statutory law.” 11A Wright, Miller & Kane, Fed. Prac. &
Proc.: Civil 2d § 2961, at 402-03. The Court could thus deny the
government’s motion on the ground that it is “merely an
untimely Rule 59e) motion for reconsideration disguised as a
motion to modify.” Jd. at 337. Accord Transgo, Inc. v. Ajac
Transmission Parts Corp., 911 F.2d 363, 365 (9th Cir. 1990)
(party seeking modification of injunction must “show clearly a
substantial change in circumstances or law since the orders
were entered [and] extreme and unexpected hardship in com-
pliance with the injunction’s terms”); Merrell-Nat’l Lab., Inc.
v. Zenith Lab., Inc., 579 F.2d 786, 791-92 (8d Cir. 1978).
56a
Like the government’s argument that the Ninth
Circuit’s holding that Healy applies is not the law of
the case, this argument is an irrelevant distraction.
If the government thought it could successfully op-
pose plaintiffs’ motion for a preliminary injunction on
purely legal grounds, it was certainly entitled to rely
on those grounds. But once the government lost on
that motion, and the Court ordered it to produce to
the Six all documents reflecting upon the decision to
file the deportation charges, “purely legal” argu-
ments about the applicable First Amendment stan-
dard had nothing to do with anything.
The government’s implication in the above-quoted
statement that it submitted this “complete factual
record” because the Ninth Circuit ordered it to is
also misleading. Nothing in AAADC v. Reno di-
rected the government to submit documents which it
had represented to this Court were irrelevant. Based
on the discussion in the papers and the statements of
Michael Lindemann at the April 8 hearing, the Court
concludes that what the government means, but for
obvious reasons is reluctant to say outright, is that
the Ninth Circuit’s rejection of its legal arguments
forced it to change its litigation strategy. While this
is understandable, it does not extricate the govern-
ment from the catch-22 in which it currently finds
itself mired.
The Court finds the government’s conduct in this
regard extremely troubling, but in view of the impor-
tance of the issue, the Court has considered the
entire 10,000-page submission.
57a
2. Most of the Government’s Submission is
Inadmissible or Irrelevant
Since the sheer volume of the submission precludes
a document-by-document analysis, the Court will
discuss a few of the recurring evidentiary problems
plaguing the government’s submission. The govern-
ment states that it “submitted approximately 10,000
pages of factual material, substantial portions of
which were at one time classified,” Def. Reply at 1,
but it continues to rely on unattributed hearsay from
confidential sources. Much of what Knight and
Markardt say in their declarations is based on infor-
mation allegedly obtained from unidentified sources.
See Pl. Reply at 14 & nn.19-20. Even if the sources
were identified by name, Knight’s and Markdardt’s
accounts of what the sources told them would be
inadmissible as hearsay. Where the sources are not
identified, as plaintiffs point out, reliance on this
“evidence” poses the same due process problems as
prohibit the INS from relying on undisclosed classi-
fied information in a legalization proceeding. See
AAADC, 70 F.3d at 1067-70.
The government’s translations are extremely prob-
lematic. Most of the documents submitted, as well as
the speeches recorded on the tapes of the fundraising
dinners, are in Arabic. The government has not sub-
mitted a single declaration from any of its translators
(often it does not even identify the translator), so
there is no foundation for any of the translations. See
Fed. R. Evid. 604. In addition, plaintiffs say that the
government has not submitted the original Arabic
materials for some of the translations it has sub-
mitted. This does not affect the Court’s ability to
evaluate the evidence, but plaintiffs ought to be able to
58a
see the original Arabic documents in order to check
the accuracy of the translations. See Pl. Reply at 16
& n.22.
Moreover, many of the government’s translations
are undated, so it is unclear whether they could have
been made available to the INS in 1987 when it made
the decision to deport plaintiffs. See, eg., Knight
Exh. 30B. The government bears the burden of estab-
lishing the relevancy of its proffered evidence, so the
Court should not admit any of the undated transla-
tions. Many of the translations that are dated were
not prepared until 1990 or 1991, well after the decision
to deport plaintiffs was made, so these translations
could not have affected that decision and are thus
clearly irrelevant. See, e.g., Knight Exh. 26B.
Similarly, the transcript of the immigration pro-
ceedings involving plaintiffs (which consumes more
than half of the 10,000-page submission) is irrelevant
because it did not exist at the time the decision to
deport plaintiffs was made and thus could not have
been relied upon by the INS. The same is true of the
declarations of Burleigh, Wilcox, and Bremer, govern-
ment counter-terrorism officials who prepared decla-
rations describing the history of the PF LP.’
7 At the April 8 hearing, the government conceded that the
immigration transcript is irrelevant because it was not pro-
vided to the INS at the time it made the decision to deport
plaintiffs. Apr. 8, 1996 Tr. at 23. The counter-terrorism offi-
cials’ declarations are irrelevant for the additional reason that
they relate only to the PFLP generally, rather than plaintiffs
as individuals. Similarly, the Markardt declaration is irrelevant
because it relates only to activities of the PLFP in New York,
and has nothing to do with any of the plaintiffs.
59a
The government offered no response whatever
either in its papers or at the April 8, 1996 hearing to
plaintiffs’ arguments regarding the translations.
The government’s only response to plaintiffs’ hear-
say charges is that since the Federal Rules of Evi-
dence do not apply in a deportation proceeding, and
hearsay is admissible in a deportation proceeding if it
is probative and its use is not fundamentally unfair,
the government should be able to rely on hearsay in
this action to prove that it acted properly in institut-
ing deportation proceedings against plaintiffs. The
use of what would otherwise be hearsay information
regarding the activities of plaintiffs would be permis-
sible under Fed. R. Evid. 801(c) if such information
were offered to establish the state of mind of the
decisionmakers rather than the truth of the matter
asserted, i.e., that plaintiffs in fact did what is alleged.
But the government does not assert that the informa-
tion it seeks to introduce is offered for this purpose.
It merely argues that because this case involves a
deportation proceeding and hearsay is admissible in a
deportation proceeding, that hearsay should be admis-
sible here. Def. Reply at 9.
At the April 8 hearing, the government analogized
the question whether the decision to deport plaintiffs
violated their First Amendment rights to a determi-
nation whether probable cause existed for an arrest.
In the latter context, because probable cause may be
based on hearsay, hearsay is admissible to show the
existence of probable cause. The Court need not re-
solve this issue, because as explained below, the prof-
fered evidence does not show that any of the plaintiffs
ee “1 eandmaahcaeeeste eatanes unlawful aims of
the :
60a
3. The Government’s Submission Does Not Show
that Plaintiffs Had the Specific Intent to
Further the PFLP’s Unlawful Aims
Even if the Court gives the government the benefit
of the doubt as to the discrepancy between its 1500-
page document production and its 10,000-page submis-
sion (despite the weakness of the government’s expla-
nation), and even if the Court disregards the grave
evidentiary problems afflicting much of the govern-
ment’s submission, the government faces a more
fundamental problem: its submission does not show
that any of the plaintiffs had the specific intent to
further the illegal aims of the PF LP.
The government’s case is based on information
gathered from the surveillance of plaintiffs (princi-
pally Hamide), in particular as regards three fund-
raising dinners held in the Los Angeles area in 1985
and 1986. Nearly all of the rest of the government’s
submission relates only to the PFLP, not to plain-
tiffs. The first of the three dinners was held at St.
Nicholas Cathedral in Los Angeles in February 1985.
The second was held at the VFW Hall in San Ber-
nardino in June 1985. The third was held at the Glen-
dale Civic Auditorium in February 1986.
The government sums up what it apparently consid-
ers to be its strongest evidence at pages 30-31 of its
opening brief: plaintiffs “(1) distributed Al Hadaf on a
commercial scale, collected subscriptions, presuma-
bly reimbursed the PF LP in Damascus for the cost of
those subscriptions, and transported these shipments
from the airport cargo facilities to Hamide’s resi-
dence; (2) rented facilities for fundraising events; (3)
arranged and provided security for PFLP events; (4)
decorated, organized, catered, conducted, and cleaned
6la
up after such events; (5) held leadership positions in
the organization; (5) [sic] [6] furnished transportation
to other PF LP leaders; (6) [sic] [7] attended high level
PFLP meetings abroad (7) [sic] [8] ordered and »:
ranged the attendance of other members at PF LP
meetings abroad; and (8) [sic] [9] engaged in regular
communications with other PFLP leaders in the
United States.” Def. Opp. at 30-31.
Notwithstanding the government’s characteriza-
tion of this conduct as “the concerted acts of an inter-
national terrorist conspiracy,” id. at 31, none of the
nine items constitutes evidence of any plaintiff's
“specific intent to further the unlawful aims” of the
PF LP.
a. The Glendale Dinner
The closest the government comes to the required
evidence is in its recounting of the 1986 Glendale
dinner. During the fundraising portion of that din-
ner, Hamide (who was acting as the MC) said: “Here
the collection of contributions is mainly for the na-
tion, for the combatants in Lebanon and on the West
Bank.” Knight Decl. at 47; Exh. 30B at 6. Hamide also
said: “The oversight committee will take over now
and will announce the total [unclear] and will see to
that. They will supervise the sending of the donation
to the homeland. I think that on the tables there is
also information about last year’s donations, that it
was received in the homeland and this was confirmed
by Al Hadaf magazine.” Knight Decl. at 48; Exh. 30B
at 6. Finally, after an interlude of dancing and sing-
ing, Hamide said: “People, the revolution will not
continue and the march to Palestine will not go with
words alone. The revolution requires support. Those
who cannot offer their lives, as do those who sacrifice
62a
their lives daily, can at least offer support here to the
heroes, the heroes who teach the enemy lesson after
lesson.” Knight Exh. 30B at 8. During this time, Ay-
man Obeid and Sharif walked around the room collect-
ing checks from attendees and passing them up to the
stage, and Shehadeh was on stage with Hamide.
Plaintiffs point out several problems with this
evidence and provide additional evidence which puts
the government’s evidence into context. First, the
above quotes are purported translations of remarks
made in Arabic, which agents Knight and Gappert do
not speak or understand. They taped the event, and
had it translated later. But the tape was unclear at
many parts during the fundraising portion, so the
translation submitted is admittedly incomplete (only
three minutes including inaudible parts, according to
plaintiffs).® Plaintiffs say that one part of the event
not captured on the government’s tape is the fact that
“the solicitations were introduced with a call for
assistance to those suffering in the refugee camps in
Lebanon and the West Bank,” and they submit
8 Moreover, it should be noted that it is far from clear that
this translation was provided to the INS before it made the
decision to deport plaintiffs. The translation is undated (as
well as unsigned), and it was not included in
which was provided to the INS despite the fact that the FBI
report discussed the Glendale dinner at great length. See
Knight Dec., Exh. 45. Knight’s declaration does not say any-
thing about who made the translation, when it was made, or
whether it was provided to the INS. See id. at 43-52. At the
April 8 hearing, the government was unable to offer any
evidence that the FBI presented this translation to the INS
before the INS decided to deport plaintiffs. The government
has thus not met its burden of establishing the relevancy of this
translation.
63a
supporting declarations from people in attendance at
the event. See Decl. of Ibrahim, Alwan.
In addition, the government omits in its brief the
fact recorded in its exhibits that in between the first
two of Hamide’s statements quoted above, Pierre
Alwan, the president of US OMEN (an IRS-certified
charitable organization that the government con-
tends, with no evidence at all, is in reality a front for
the PFLP’s military operations), solicited in English
contributions of furniture and other items to a thrift
store run by US OMEN. Knight Exh. 30B at 6.
In the same regard, the government’s own evidence
shows that at the St. Nicholas event in 1985, the fund-
raising was expressly for the benefit of US OMEN.
Hamide told attendees to make checks payable to
US OMEN. Knight Dele. at 456. The declarations of
Nasir, Ibrahim, Ajjawi, and Alwan corroborate this,
and state that the donations solicited at the dinners
were understood to be for humanitarian purposes
only. The government has no evidence of what actu-
ally transpired at the San Bernardino VFW dinner in
June 1985 (which Amer, not Hamide, ran), but it says
that in advance of that dinner, the FBI received infor-
mation that the fundraising to be conducted would be
represented to the audience as for the benefit of
mothers and orphans of Palestinians in the Middle
East.” Knight Decl. at 483(d).
b. The Healy “Specific Intent” Standard
None of these statements proves that Hamide
(much less any of the other seven plaintiffs) had the
specific intent to further the unlawful aims of the
PFLP. The reference to “combatants” is unimpres-
sive, because as the government argues in a different
context, all PFLP members are referred to as “com-
64a
batants and supposedly bound by PFLP doctrine to be
“combatants.” See p. 26-27, infra. Obviously, most
are not “combatants” in the sense the government is
trying to pin on Hamide’s statement. As plaintiffs
point out, “combatants” could refer to all those who
opposed or spoke out against the West Bank occupa-
tion, all those who opposed the peace process, or all
those who participated in strikes in protest of the
occupation. The same is true for “heroes who teach
the enemy lesson after lesson.”
In context, there is no reason to believe that these
statements evince a specific intent to raise money for
terrorism. Rather, the PFLP employed terms such
as “combat” and “hero” broadly, as rhetorical flour-
ishes, consistent with the Supreme Court’s recogni-
tion that militant rhetoric goes with the territory of
political speech by political minorities. See, e.g.,
Watts v. United States, 394 U.S. 705, 708, 89 S. Ct.
1399, 1401 (1969) (“The language of the political arena
.. . is often vituperative, abusive, and inexact”).
Indeed, the Supreme Court has extended the protec-
tion of the First Amendment to speech far more mili-
tant than what Hamide is alleged to have said. See id.
at 706, 89 S. Ct. at 1400 (“if they ever make me carry a
rifle the first man I want to get in my sights is
L.B.J.”); Noto v. United States, 367 U.S. 290, 298, 81 S.
Ct. 1517, 1521 (1961) (“certain individuals hostile to
the Party would one day be shot”). The government
makes much of Hamide’s statement that the money
being collected was destined for “the homeland,” but
that statement in no way shows that the money would
support illegal activities in “the homeland.” The
money could as easily have been destined for the
refugee camps mentioned above, or for any of the
65a
numerous other lawful activities engaged in by the
PFLP.’
The Court’s conclusion is confirmed by an examina-
tion of the Supreme Court’s opinion in NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 102 S. Ct.
3409 (1982), its most recent treatment of these issues.
That case involved a widespread and long-lasting boy-
cott of white-owned stores in Port Gibson, Missis-
sippi. One of the principal ways the boycott organiz-
ers achieved broad compliance with the boycott was
by stationing “store watchers” and “Black Hats” out-
side the white-owned businesses to record the names
of blacks that patronized them. In addition to the use
of the lawful sanction of social ostracism to dissuade
blacks from breaking the boycott the Court expressly
noted that “some members of each of these groups
engaged in violence or threats of violence.” Jd. at 926,
102 S. Ct. at 3432. Relying on this unlawful activity,
the plaintiffs sought to impose liability on all indi-
viduals who were either store watchers or members
of the Black Hats. The Court held that while the
individuals who engaged in the unlawful activities
could be liable, the individuals who associated with
these two groups but did not personally engage in the
unlawful activities carried out by some of their
number could not be liable “absent a specific intent to
further an unlawful aim embraced by that group.” Jd.
at 925, 102 S. Ct. at 3432.
* As plaintiffs stated at the April 8 hearing, it would not
demonstrate a specific intent to further any unlawful activities
to prove that the funds raised would be devoted exclusively to
the PFLP’s military activities. This is because the PFLP en-
gages in legal military activities, such as defending refugee
camps, as well as illegal military activities.
66a
Just as “(t]here is nothing unlawful in standing
outside a store and recording names” or “in wearing
black hats, although such apparel may cause appre-
hension in others,” id., there is nothing unlawful in
distributing literature, recruiting new members,
collecting money, or organizing dinner events, even if
others find such literature or events alarming. And
just as the Supreme Court in Claiborne Hardware
refused to allow liability to attach by virtue of asso-
ciation with groups that engaged in unlawful activity,
plaintiffs in the instant case cannot be deported for
associating with an organization that engages in
unlawful activity.
Because a “blanket prohibition of association with
a group having both legal and illegal aims’ would pres-
ent ‘a real danger that legitimate political expression
or association would be impaired,” id. at 919, 102 S.
Ct. at 3428 (quoting Scales v. United States, 367 U.S.
203, 229, 81 S. Ct. 1469, 1486 (1961)), the First Amend-
ment requires “clear proof that a defendant ‘specifi-
cally intend[{s] to accomplish [the aims of the organi-
zation] by resort to violence.’” Scales, 367 U.S. at
229, 81 S. Ct. at 1486 (quoting Noto, 367 U.S. at 299, 81
S. Ct. at 1522)).
The Claiborne Hardware Court noted that the
Court in Noto had “emphasized that this intent must
be judged ‘according to the strictest law,’ for ‘other-
wise there is a danger that one in sympathy with the
legitimate aims of such an organization, but not
specifically intending to accomplish them by resort to
violence, might be punished for his adherence to
lawful and constitutionally protected purposes, be-
cause of other and unprotected purposes which he
does not necessarily share.’” Claiborne Hardware,
458 U.S. at 919, 102 S. Ct. at 3429 (quoting Noto, 367
67a
U.S. at 299-300, 81 S. Ct. at 1521)). Here the govern-
ment has simply not presented “clear proof” that any
of the plaintiffs “specifically intend[ed] to accomplish
[the unlawful aims of the PFLP] by resort to
violence.”
The government’s response in this regard is, un-
fortunately, typical of its approach to this case:
claiming the moral high ground while making mis-
leading arguments. “The PFLP cannot remotely be
compared to the NAACP. The NAACP never kid-
naped and murdered an American Ambassador; it did
not slaughter innocent American citizens at the Lod
Airport ....” Def. Reply at 11. The entire point of
freedom of association is that it doesn’t matter
whether the PF LP can be compared to the NAACP,
and it doesn’t matter whether the PFLP has done all
these bad things and more. The point is that there is
no evidence that any of the plaintiffs ever kidnaped,
murdered, or slaughtered anyone, so “precision of
regulation” is required to ensure they are not pun-
ished for their constitutionally protected activities.
Claiborne Hardware, 458 U.S. at 916, 102 S. Ct. at
3427 (quoting NAACP v. Button, 371 U.S. 415, 438, 83
S. Ct. 328, 340 (1963)).
ce. The Government’s Other Evidence is Unper-
suasive
As the Court has stated above, the evidence regard-
ing the Glendale dinner is the government’s strong-
est. For the sake of completeness, the Court will
describe certain other evidence relied upon by the
government as well. When one considers this addi-
tional evidence, the overall weakness of the govern-
ment’s showing—despite the sheer enormity of its
submission—becomes apparent.
68a
A recurring feature of the government’s submis-
sion is the making of conclusory assertions without
any supporting evidence. For example, Knight’s nar-
ration of the Glendale dinner includes statements
such as: “It is obvious that this fundraiser has
nothing to do with building hospitals or schools, it is
solely for raising money for terrorist activities by
the PFLP.” Knight Exh. 30B at 1. Knight doesn’t
say exactly why he thinks this, but it appears to be
because “[tJhere are posters with people carrying AK
47s and standing behind anti tank howitzers.” Id.
Knight also says that “(t]he males are wearing fa-
tigue shirts and camouflage fatigue pants, this would
not be a normal attire for obtaining cash for orphans,
it is one to get cash for guns.” Jd. Thus, instead of
following the trail of the money collected at the
Glendale dinner, the government simply advances the
bald assertion that because the event had a militant
tone, it must have been intended to support exclu-
sively the PFLP’s terrorist activities. There is no
basis in logic or in the proffered evidence for this
assertion.
Indicative of the government’s scattershot, guilt by
association approach is its statement of facts in its
opening brief, which begins with the following: “Sis-
ters and brothers we all know the revolution wants to
transform dollars into bullets, the dollar into bombs,
the dollar into a loaf of bread for a family in a hungry
camp.... Therefore, I suggest putting this chain on
auction. This way we change this chain to dollars.
From dollars then we can transform it to bullets, and
the bullets to kill Zionists in the occupied land. Let us
start auctioning on this chain.” Def. Opp. at 3. Un-
fortunately for the government, this alleged state-
ment was made by an unidentified New York PF LP
69a
leader, not any of the plaintiffs. It is thus hardly
probative of plaintiffs’ specific intent.”
The government is much exercised about the
speech given by Jaber El-Wanni at the Glendale din-
ner. El-Wanni allegedly (the problems with the gov-
ernment’s translations that the Court detailed above
are present here as well) threatened Arabs who
supported the Amman Accord, and named some names.
One of those named was Nablus Mayor Zaphir Al
Masri, who was assassinated a few weeks later. The
PFLP, among other groups, claimed responsibility
for the killing. See Knight Decl. at 45-46. The gov-
ernment argues that this gave it the right to prose-
cute plaintiffs for conspiracy or making threats.
As plaintiffs explain, “[tJhere is no evidence that
plaintiffs directed Mr. El-Wanni to make that state-
ment, conspired with him, nor even that they were
aware that he would make it. The only theory left for
holding plaintiffs responsible for Mr. El-Wanni’s
statement is guilt by association, a theory forbidden
by the First Amendment.” Pl. Resp. at 2. The fact (if
it is a fact) that El-Wanni threatened Al-Masri with
plaintiffs present in no way proves that plaintiffs had
the specific intent to further any unlawful activities.
Perhaps the most dubious of the government’s
many unpersuasive arguments is its claim that
“PFLP doctrine mandates that every PF LP member
be © combatant and binds all members to the positions
taken by PFLP leaders. PFLP doctrine also holds
that all PFLP activities are subordinate to the
‘battle.’ Knight Decl. at 13. To the committed PF LP
Similarly, the entire Markardt declaration relates to
activities of the PFLP in New York, and has nothing to do
with plaintiffs.
70a
member, pulling a trigger is no different than selling
a subscription to Al Hadaf, and soliciting money for
the cause is the same as killing Zionists. Every act
has a political message. Every utterance carries a
terrorist purpose.” Def. Opp. at 4." Putting aside for
the moment the sheer incredibility of this claim, the
real issue, as plaintiffs point out, “is not whether
these things are indistinguishable ‘to the committed
PFLP member,’ but to the United States Constitu-
tion.” Pl. Reply at 26. As the Supreme Court has ob-
served, “men in adhering to a political party or other
organization notoriously do not subscribe unquali-
fiedly to all of its platforms or asserted principles.”
Aptheker v. Sec. of State, 378 U.S. 500, 510, 84 S. Ct.
1659, 1666 (citation omitted).
It should also be noted that most of the evidence
discussed in this Order relates mainly to Hamide, to a
somewhat lesser extent to Shehadeh, and only indi-
rectly to the Six. Plaintiffs’ helpful summary of the
evidence with respect to each of the Six (helpful
because the government nowhere particularizes its
evidence among the various plaintiffs) reveals that
most of it is based on their association with Hamide.
See Pl. Reply at 32-33 n.36. Thus, the Court’s
conclusion that the government has not demonstrated
1! This presumably is the reason for the government’s sub-
mission of many hundreds of pages of PFLP publications, such
as “The Political and Organizational Strategy,” published by
the PF LP’s Central Information Committee. The government
quotes and underscores, as if it is somehow meaningful, the
statement in this work that the “dialectical link between the
battle and the political activity is a sound guide for our action”
and that “[ajll organization, nolitical, informational, and finan-
cial efforts must be linked to the interests of the battle and not
be at its expense.” Def. Opp. at 4-5 n.4.
Tla
that Hamide or Shehadeh had the specific intent to
further the unlawful aims of the PFLP applies a
fortiori to the Six.
d. The Government's Strict Scrutiny Argument
The government argues that “[e]ven assuming that
the conduct engaged in by these aliens is character-
ized as pure political ‘advocacy’ and the government
action or regulation here is an infringement of these
aliens’ freedoms of association . . . the Supreme
Court has declared that ‘it is clear that ‘neither the
right to associate nor the right to participate in
political activities is absolute.’’” Def. Opp. at 36
(citing Buckley v. Valeo, 424 U.S. 1, 25 (1976). In
other words, selecting plaintiffs for deportation on
the basis of First Amendment protected conduct does
not automatically violate the First Amendment; it is
subject to strict scrutiny as a content-based regula-
tion of speech and association. The government thus
argues that its action was narrowly tailored to fur-
ther a compelling governmental interest.
At the April 8, 1996 hearing, plaintiffs argued that
the considerations underlying the strict scrutiny
standard are alrea’y incorporated into the Healy
standard. More specifically, the argument goes, the
Supreme Court held that the compelling governmen-
tal interest in stopping groups’ unlawful activities
may, in light of the protection to which associational
conduct is entitled under the First Amendment, be
furthered only by targeting those associators who
have the specific intent to further the group’s unlaw-
ful activities; targeting associators who lack this
specific intent would be an ins’<fficiently narrowly
tailored method of regulation. The Healy rule would
72a
thus constitute a context-specific application of strict
scrutiny.
The Court agrees with plaintiffs. In Claiborne
Hardware, the Supreme Court «+t forth the Healy
standard and for support, then stated that “[iJn this
sensitive field, the State may not employ ‘means that
broadly stifle fundamental personal liberties when the
end can be more narrowly achieved.” 458 U.S. at 920,
102 S. Ct. at 3429 (quoting Carroll v. Princess Anne,
393 U.S. 175, 183-84, 89 S. Ct. 347, 353 (1968)). This
indicates that Healy in effect is the strict scrutiny
standard in the particular context of association with
groups that engage in both lawful and unlawful activi-
ties. In addition, the Court has discovered no case in
which the court has analyzed the issue as the govern-
ment suggests: first find that a government regula-
tion of associational activity is unjustified under
Healy and then apply strict scrutiny to determine
whether it can nonetheless be upheld. The absence of
an explicit levels-of-scrutiny analysis is not worri-
some or unusual, since (as the government argues in
a different context, see Def. Opp. at 23-25), the Su-
preme Court often speaks without reference to levels
of scrutiny in First Amendment cases. See e.g., City
of Ladue v. Gilleo, 114 8. Ct. 2038 (1994).
In any event, if strict scrutiny applies independent
of the Healy test, the Court holds that the govern-
ment’s action in deporting plaintiffs for their pro-
tected association with the PFLP fails such scrutiny.
The government asserts that it has a compelling
interest in stopping terrorism. It surely does. But if
the government cannot prove that plaintiffs had the
specific intent to further any terrorist activities, it
cannot demonstrate that its deportation of plaintiffs
73a
was a narrowly tailored action in furtherance of that
interest.”
When questioned in this regard at the April 8 hear-
ing, Lindemann, the government’s attorney, advanced
the eye-opening contention that when the government
has a compelling interest, it “can do pretty much
what it wants to do.” Apr. 8, 1996 Tr. at 67. Not only
is this contention utterly without a basis in law, but
it is also quite disturbing to hear coming from the
government as a justification for its conduct in a case
where the plaintiffs have made a preliminary showing
that the government in effect treated them as if it
could do whatever it wanted.
Lindemann’s statement could be dismissed with the
recognition that extemporaneous oral remarks tend
naturally to suffer from imprecision and are not al-
ways intended to mean what they appear to say. But
off-the-cuff oral remarks also often mean just what
they say, even (or especially) if they weren’t intended
to be said. The Court is more inclined to view Linde-
mann’s statement as an unintended but sincere prod-
uct of the extemporaneous setting—a Freudian slip—
given his argument to the same effect in his reply
brief, in which he contended that because of the diffi-
culty of this case, “the interests of the sovereign
must weigh heavily.” Def. Reply at 8. It should not
need to be said that in this as in every case, “the
interests of the sovereign” are entitled only to so
much deference as the law affords them. A demo-
2 It would thus appear that the government could never
pass strict scrutiny when it fails Healy, which is another reason
to believe that strict scrutiny is embodied in the Healy standard
and need not be separately analyzed in this case.
74a
cratic government is constituted of, controlled by, and
exists for, the people; it is their equal before the law.”
Ill. CONCLUSION
In light of all the foregoing, the Court holds that
the government has failed to show that any of the
plaintiffs had the specific intent to further the
unlawful aims of the PFLP. This is what William
Webster admitted years ago, and the government’s
10,000-page submission confirms it. Therefore, plain-
tiffs’ association with the PF LP was protected by the
First Amendment. The Court has already found pre-
liminarily that the Six have made out a prima facie
case that this protected association was the govern-
ment’s motivation in selecting them for deportation
and that others similarly situated were not so
selected. The Court hereby reaffirms that finding,
and denies the government’s motion to dissolve the
preliminary injunction as to the Six. For the same
reasons as the Court found the Six had made out a
prima facie case of discriminatory motive and dispa-
rate impact, the Court finds that the Two have done
so as well. The Court therefore grants their renewed
motion for a preliminary injunction."
% The Court recognizes that plaintiffs are not citizens of
the United States, but as stated, under AAADC v. Reno, they
are entitled to the same First Amendment rights as citizens.
4 In its reply, the government argues that it need not
prove beyond a reasonable doubt that plaintiffs had the specific
intent to further the PFLP’s unlawful aims, but only meet the
“evidentiary burden” “which would justify initiating a civil
deportation proceeding.” Def. Reply at 1. It is probably true,
as the government argues, that to institute a deportation pro-
ceeding, the government need only have a prima facie case of
deportability. But that is not the issue here. Plaintiffs do not
contend that they are not deportable; the government clearly
75a
On April 5, 1996, the government filed a motion for
reconsideration of the Court’s Order issued March 6,
1996 granting in part plaintiffs’ motion to compel
production of two memos which the government had
claimed were privileged. Under Fed. R. Civ. P. 59e),
the government’s motion is nearly three weeks late,
and under Local Rule 7.16, it is improper because it
does not set forth a ground for reconsideration. At
the April 8, 1996 hearing, the government stated that
its motion was filed last because it spent three weeks
deciding whether to seek an interlocutory appeal, to
had evidence that various of the plaintiffs advocated “world
communism,” 8 U.S.C. § 1251(a)(6)(D), or were out of status, 8
U.S.C. § 1251(a)(2). What plaintiffs contend is that the govern-
ment decided to act on this evidence of deportability to deport
them, while not acting on similar evidence to deport similarly
situated others, because of plaintiffs’ association with the
PFLP. If this is true, it would constitute selective enforcement
in violation of the First Amendment regardless of plaintiffs’
statutory deportability. To prevail on the instant motions, the
government must show that the conduct by plaintiffs that
motivated it to deport them was not protected by the First
Amendment. The Court has concluded that the conduct which
plaintiffs have preliminarily shown to have motivated the
government was protected by the First Amendment. The
Court need not address the question at what level of proof the
government must demonstrate specific intent under Healy or
its own motivation, because there is no evidence in the record
that could have led a reasonable person to believe that any of
the plaintiffs had the specific intent to further the PFLP’s
unlawful aims. Moreover, this is not what the government
believed at the time; it believed instead that it could deport
plaintiffs merely for associating with the PF LP, even though if
plaintiffs “had been United States citizens, there would not
have been a basis for :heir arrest.” Webster Testimony, supra,
at 95. Indeed, the goverriment continued to adhere to this
position until the Ninth Circuit rejected it in AAADC v. Reno.
76a
comply with the March 6 Order and seek to redact
parts of the two memos, to seek reconsideration, or to
take other action. Needless to say, this is not a valid
excuse for failing to comply with the time limits of
Rule 59(e), and is no excuse whatever for simply
ignoring this Court’s March 6 Order, which directed
the government either to produce the two memos to
plaintiffs or to submit its proposed redactions by
March 25, 1996. The Court believes the government’s
blatant disobedience of the March 6 Order to be sanc-
tionable. Nevertheless, as stated at the April 8 hear-
ing, in view of the importance of the privilege issue,
the Court will consider the government’s motion.
However, the Court wishes to make it clear to the
parties that it will tolerate no such conduct in the
future. In addition, plaintiffs filed on April 8, 1996 a
request for reconsideration of the Court’s Order
issued March 25, 1996 denying plaintiffs’ motion for
attorney’s fees. This request was thus also untimely.
While the Court will consider plaintiffs’ request as
well, the Court hereby warns the parties that such
indulgence will not continue indefinitely.
IT IS SO ORDERED.
DATED: 4/25/96
/s/ STEPHEN V. WILSON
STEPHEN V. WILSON
UNITED STATES
DISTRICT JUDGE
77a
APPENDIX D
UNITED STATES COURT OF APPEALS
NINTH CIRCUIT
Nos. 94-55405, 94-55444 AND 95-55177
AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE;
ARAB AMERICAN DEMOCRATIC FEDERATION;
ASSOCIATION OF AMERICAN UNIVERSITY GRADUATES;
IRISH NATIONAL CAUCUS; PALESTINE HUMAN RIGHTS
CAMPAIGN; LEAGUE OF UNITED LATIN AMERICAN
CITIZENS; MICHAEL BOGOPOLSKY; DARREL MEYERS;
SOUTHERN CALIFORNIA INTER-FAITH TASK FORCE ON
CENTRAL AMERICA; AIAD KHALED BARAKAT; KHADER
Musa HAMIDE; NUANGUGI JULIE MUNGAI; AMJAD
MUuSTAFA OBEID; AYMAN MusTAFA OBEID; NAIM NADIM
SHARIF; MICHAEL IBRAHIM SHEHADEH; BASHAR AMER;
AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS;
FUND FOR FREE EXPRESSION; AMERICAN FRIENDS
SERVICE COMMITTEE, PLAINTIFFS-APPELLANTS
v.
JANET RENO, IN HER CAPACITY AS ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA, ET AL.; ERNEST E.
GUSTAFSON, DISTRICT DIRECTOR; IMMIGRATION &
NATURALIZATION SERVICE, DEFENDANTS-APPELLEES
AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE;
ARAB AMERICAN DEMOCRATIC FEDERATION;
ASSOCIATION OF AMERICAN UNIVERSITY GRADUATES;
IRISH NATIONAL CAUCUS, ET AL.,
PLAINTIFFS-APPELLEES
v.
JANET RENO; DoRIS MEISSNER; HAROLD EZELL; C.M.
McCULLOUGH, ET AL., DEFENDANTS-APPELLANTS
78a
AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE;
ARAB AMERICAN DEMOCRATIC FEDERATION;
ASSOCIATION OF AMERICAN UNIVERSITY GRADUATES;
IRISH NATIONAL CAUCUS; AIAD BARAKAT;
NAIM SHARIF, ET AL., PLAINTIFFS-APPELLEES
v.
JANET RENO; DoRIS MEISSNER; HAROLD EZELL;
Gustavo DELA VINA; ERNEST E. GUSTAFSON;
RICHARD K. RoGERS, DISTRICT DIRECTOR;
IMMIGRATION & NATURALIZATION SERVICE,
DEFENDANTS-APPELLANTS
Argued and Submitted April 7, 1995
Decided Nov. 8, 1995
D.W. NELSON, Circuit Judge:
This opinion decides three cases that have been
consolidated on appeal. Two of the cases involve
claims of selective enforcement’ of immigration laws
in violation of the aliens’ First Amendment rights,
arising from the initiation of deportation proceedings
under various provisions of the Immigration and
Nationality Act (“the INA”), codified as amended at
8 U.S.C. § 1101 et seg. (1994), against Aiad Khaled
Barakat, Naim Nadim Sharif, Bashar Amer, Ayman
Mustafa Obeid, Julie Nuangugi Mungai, and Amjad
Mustafa Obeid (No. 94-55444, collectively referenced
as “the Six”); and Khader Musa Hamide and Michael
Ibrahim Shehadeh (No. 94-55405, collectively refer-_
enced as “Hamide and Shehadeh”). In No. 94-55444,
the Attorney General and the Immigration and
1 A selective enforcement claim is the immigration
equivalent of a criminal selective prosecution claim.
79a
Naturalization Service appeal the grant of a pre-
liminary injunction against further deportation pro-
ceedings for the Six. In No. 94-55405, Hamide and
Shehadeh appeal the district court’s denial of a
similar preliminary injunction based on lack of
subject matter jurisdiction. In the third case, No.
95-55177, the INS appeals the district court’s finding
of a due process violation and its grant of a permanent
injunction prohibiting the INS’ use of undisclosed
classified information against Barakat and Sharif
in adjustment-of-status legalization proceedings pur-
suant to Section 245a of the Immigration Reform and
Control Act of 1986 (“the IRCA”), Pub. L. 99-603, 100
Stat. 3394 (Nov. 6, 1986), codified as amended at
8 U.S.C. § 1255a (1994). We have jurisdiction to review
orders granting or denying a preliminary injunction
under 28 U.S.C. § 1292(a) (1) (1988) and jurisdiction
to review the district court’s final order granting a
permanent injunction under 28 U.S.C. § 1291 (1988).
We affirm the grant of a preliminary injunction
against the INS in the proceedings to deport the Six,
we affirm the grant of a permanent injunction against
the INS preventing the use of undisclosed classified
information against Barakat and Sharif in their
legalization proceeding, and we vacate the district
court’s decision that it lacked jurisdiction to consider
the selective enforcement claim of Hamide and
Shehadeh and remand for the district court to address
that claim on the merits.
FACTUAL AND PROCEDURAL BACKGROUND
After initiating deportation proceedings, the INS
arrested the eight named aliens in this case in
January 1987. They were detained for several weeks
in maximum security prisons and then released
80a
pending the outcome of deportation proceedings. The
INS charged all but Mungai under various provisions
of the McCarran-Walter Act of 1952 (“the 1952 Act”)?
for membership in an organization, the Popular Front
for the Liberation of Palestine (“PFLP”), that alleg-
edly advocates the doctrines of world communism. In
2 The provisions of the 1952 Act provided in relevant part
for the deportation of _
(D) Aliens . . . who advocate the economic, international,
and governmental doctrines of world communism or the
establishment in the United States of a totalitarian
dictatorship, or who are members of or affiliated with
any organization that advocates the economic,
international, and governmental doctrines of world
communism or the establishment in the United States of
a totalitarian dic-tatorship . . .;
(F) Aliens who advocate or teach or who are members of or
affiliated with any organization that advocates or
teaches . . . (ii) the duty, necessity, or propriety, of
the unlawful assaulting or killing of any [government]
officer or officers . . .; or (iii) the unlawful damage,
injury, or destruction of property; or (iv) sabotage;
(G) Aliens who write or publish, . . . or knowingly cause
to be circulated, distributed, printed, published, or
displayed, . . . any written or printed matter,
advocat-ing or teaching [the doctrines and activities
prohibited in sections F and Dj;
(H) Aliens who are members of or affiliated with any
organization that writes, circulates, distributes, prints,
publishes, or displays, or causes to be written, circulated,
distributed, printed, published, or displayed, or that has
in its possession for the purpose of circulation,
distribution, publication, issue, or display any written
or printed matter of the character described in
paragraph (G) of this subdivision. 8 USC. $$
1251(a)(6)(D), (F), (G), CH) (1988).
8la
addition, the Six were charged with non-ideological
immigration violations under 8 U.S.C. § 1251(a)(2)
(1988) (overstaying a visa). Amer was also charged
under 8 U.S.C. § 1251(a)(9) (1988) (failing to maintain
student status). Later, charges were added for both
Ayman Obeid and Amjad Obeid for changing their
nonimmigrant status by taking unauthorized employ-
yt Po dy 1987, Mungai was also charged
under the arran-Walter Act, 8 U.S.C.
Da Gh end § 1251(a)(6)
In April 1987, the individual plaintiffs and several
organizations initiated an action for damages, a
declaration that the provisions of the 1952 Act under
which the eight were charged are unconstitutional
facially and as applied, and injunctive relief against
the investigation, arrest, and deportation of aliens
pursuant to the challenged provisions. On April 23,
1987, just four days before the district court’s hearing
on a motion for a preliminary injunction, the INS
dropped the 8 U.S.C. § 1251(a)(S) ideological charges
against the Six, but it retained the non-ideological,
technical violation charges. The INS also dropped the
original charges against Hamide and Shehadeh; but
on April 28, 1987, it brought new charges against
them under 8 U.S.C. § 1251(a)(6)(F (iii), alleging that
they were deportable as members of an organization
that advocates or teaches the unlawful destruction
of property. Later, the INS added a charge under 8
U.S.C. § 1251(a)(6)(F (ii), alleging that Hamide and
Shehadeh were associated with a group that advocates
the unlawful assaulting or killing of government
officers.
In April and May of 1987, former FBI director
William Webster testified to Congress that “{aJll of
them were arrested because they are alleged to be
82a
members of a world-wide Communist organization
which under the McCarran Act makes them eligible
for deportation . . . in this particular case if these
individuals had been United States citizens, there
would not have been a basis for their arrest.”
Hearings before the Senate Select Committee on
Intelligence on the Nomination of William H.
Webster, to be Director of Central Intelligence, 100th
Cong., Ist Sess. 94, 95 (April 8, 9, 30, 1987; May 1,
1987). Also, at a press conference after the original
charges were dropped against the Six, INS Regional
Counsel William Odencrantz indicated that the
change in charges was for tactical purposes and that
the INS intends to deport all eight plaintiffs because
they are members of the PF LP.
The district court issued orders on May 21, 1987
and June 3, 1987 holding that it had no jurisdiction
over the 1952 Act claims of Hamide and Shehadeh
on ripeness grounds. Hamide and Shehadeh unsuc-
cessfully sought review of the statute by mandamus.
Hamide v. United States District Court, No. 87-7249
(9th Cir. Feb. 24, 1988). When they again sought
review in the district court, it found that their facial
and as-applied constitutional challenges to the
statute were not justiciable. American-Arab Anti-
Discrimination Committee v. Meese, 714 F. Supp.
1060, 1064. (C.D. Cal. 1989), aff'd in part, rev'd in
part, American-Arab Anti-Discrimination Com-
mittee v. Thornburgh, 970 F.2d 501, 511 (9th Cir.
1991). Ruling on the claims of the Six, the district
court found the challenged statutory provisions
unconstitutionally overbroad. 714 F. Supp. at 1083-84.
On review, the Ninth Circuit reversed the district
court’s holding on ripeness grounds. 970 F.2d at
510-12.
83a
On April 5, 1991, after the repeal of the 1952 Act,
the INS instituted new proceedings against perma-
nent resident aliens Hamide and Shehadeh under the
“terrorist activity” provision of the Immigration Act
of 1990 (“the IMMACT”), Pub. L. No. 101-649, 104
Stat. 4978 (Nov. 29, 1990), codified as amended at 8
U.S.C, § 1251(a)(4)(B) (1994) (rendering deportable
“[ajny alien who has engaged, is engaged, or at any
time after entry engages in-terrorist activity (as
defined in Section 1182(a)))." The status of the
charges under the 1952 Act is not clear: the Govern-
ment has asserted at different times that the prior
charges and proceedings under that Act remain
pending concurrent with the new proceedings, or that
the new charges “amended” the basis of the deporta-
tion proceedings so that the “terrorist activity”
charges are the only ones currently pending.
All eight aliens then filed suit in district court
claiming that the INS had singled them out for
selective enforcement of the immigration laws based
on the impermissible motive of retaliation for
constitutionally protected associational activity. On
January 7, 1994, however, the district court granted
summary judgment to the Government on Hamide’s
and Shehadeh’s selective enforcement claim, finding
that it lacked jurisdiction. At the same time, the
* The IMMACT defines “engage in terrorist activity” as:
to commit, in an individual capacity or as a member
of an organization, an act of terrorist activity or an act
which the actor knows, or reasonably should know,
affords material support to any individual, organization,
= government in conducting a terrorist activity at any
ime.
8 U.S.C. § 1182(a)(3)(B)(iii) (1994).
84a
district court granted a motion for further discovery
and a preliminary injunction against further deporta-
tion proceedings in the case of the Six.
Meanwhile, in June of 1987, Barakat and Sharif
applied for legalization under the IRCA. In 1991, they
received Notices of Intent to Deny because the INS,
using undisclosed classified information, considered
them excludable under former 8 U.S.C. § 1182(a)(28)
(F).- Barakat and Sharif filed suit in district court
challenging the use of classified information on
several grounds, including a due process claim. The
district court found that it had jurisdiction, and it
issued a preliminary injunction against the confiden-
tial use of classified information. Following an in
camera, ex parte examination of materials provided
by the INS, the court concluded that use of the
undisclosed information against Barakat and Sharif
would constitute a due process violation, a>~ it
granted a permanent injunction against its se on
January 24, 1995.
4 The former provision excluded:
Aliens who advocate or teach or who are members of
or affiliated with any organization that advocates or
teaches . . . (ii) the duty, necessity, or propriety of
the unlawful assaulting or killing of any officer or
officers (either of specific individuals or of officers
generally) of the Government of the United States or of
any other organized government, because of his or their
official character; or (iii) the unlawful damage, injury,
or destruction of property.
8 U.S.C. § 1182(a)(28)(F).
85a
DISCUSSION
I, JURISDICTION
As a threshold matter, we must determine whe
the district court had jurisdiction to adjudicate woe
challenges to the INS’ discretionary decisions and
procedures. We review de novo the district court’s
decision regarding its subject matter jurisdiction.
— v. INS, 30 F.3d 1106, 1109 (9th Cir.
A. SELECTIVE ENFORCEMENT CLAIMS
“To succeed on a selective prosecution claim
defendant bears the burden of showing both reo
others similarly situated have not been prosecuted
and that the prosecution is based on an impermissible
motive.’” United States v. Bourgeois, 964 F.2d 935
938 (9th Cir.) (quoting United States v. Wayte 710
Pad 1886, 1387 (9th Cir. 1983), aff'd, 470 U.S. 598
, cert. denied, 506 U.S. 90
L.Ed.2d 215 (1992). ieee
1. The Six Nonimmigrant Aliens
The Government argues that the district court
lacked jurisdiction because the aliens’ claim of
selective enforcement can be reviewed directly by the
court of appeals only upon review of a final order of
deportation. We disagree.
a. The Statutory Scheme for Judicial Review
Section 106 of the INA, as amended, provides exclu-
sive judicial review in the courts of appeals for “all
final orders of deportation” after exhaustion of
administrative remedies available to [the petitioner]
86a
as of right.” 8 U.S.C. §§ 1105a(a), (c) (1994).° Disere-
tionary “determinations made during an incident to
the administrative proceeding . . . and reviewable
together by the Board of Immigration Appeals . . .
are likewise included within the ambit of the
exclusive jurisdiction of the Courts of Appeals under
§ 106(a).” Foti v. INS, 375 U.S. 217, 229, 84 S. Ct. 306,
313-14, 11 L.Ed.2d 281 (1963). However, because of the
need for a factual record beyond that which can be
5 The section provides, in relevant part:
(a) Exclusiveness of procedure[:) The procedure pre-
scribed by, and all the provisions of chapter 158 of
Title 28 (the Hobbs Act,] shall apply to, and shall be
the sole and exclusive procedure for, the judicial
review of all final orders of deportation, heretofore or
hereafter made against aliens within the United
States pursuant to administrative proceedings under |
Section 1252(b) of this title, or comparable provisions
of any prior Act, except that . . . (4) except as
provided in clause (B) of paragraph (5) of this
subsection, the petition shall be determined solely
upon the administrative record upon which the de-
portation order is based . . . [and] (5) whenever any
petitioner, who seeks review of an order under this
section, claims to be a national of the United States
. . . the court shall . . . (B) where a genuine issue
of material fact as to the petitioner’s nationality is
presented, transfer the proceedings to a United
States district court . . . for hearing de novo of the
nationality claim. . . .
(c) An order of deportation or of exclusion shall not
be reviewed by any court if the alien has not
exhausted the administrative remedies available to
him as of right under the immigration laws and
regulations or if he has departed from the United
States after the issuance of the order. . . .
8 U.S.C. §§ 1105a(a), (c) (1994) (emphasis added).
87a
cannot review many discretionary decisions of the
INS as part of our review of a final deportation
order. See, e.g., Abedi-Tajrishi v. INS, 752 F 2d 441,
443 (9th Cir. 1985) (finding no jurisdiction to review a
discretionary decision when factual development is
necessary); Mohammadi-Motlagh v. INS, 727 F.2d
1450, 1451, 1452 (9th Cir. 1984) (finding no jurisdiction
for appellate review when the immigration judge and
the Board of Immigration Appeals lack jurisdiction to
review a district director’s discretionary decision).
When the provision for exclusive review in the
courts of appeals is inapplicable, jurisdiction lies in
the district court pursuant to the federal question
statute, 28 U.S.C. § 1331, and pursuant to the general
grant of power to review matters arising under the
immigration laws, 8 U.S.C. § 1329. See Cheng Fan
Kwok v. INS, 392 U.S. 206, 210, 88 S.Ct. 1970, 1973, 20
L.Ed.2d 1037 (1968); Karmali v. INS, 707 F.2d 408, 409
(9th Cir. 1983).
The decision to institute deportation proceedings,
the basis for a selective enforcement claim, is a dis-
cretionary decision of the INS director that is not
subject to review by either the immigration judge
(“IJ”) or the Board of Immigration Appeals (“BIA”).
See Lopez-Telles v. INS, 564 F.2d 1302, 1304 (9th Cir.
1977). Both the IJ conducting the deportation pro-
ceeding and the Government agree that neither the LJ
nor the BIA has jurisdiction to consider a selective
enforcement claim during a deportation proceeding.
Thus, we conclude that selective enforcement claims
are not subject to the statutory provision for exclu-
sive review after issuance of a final deportation order.
The Government’s argument that the selective
enforcement claim in this case is “purely legal” and
thus reviewable only in the court of appeals is unper-
88a
suasive. Both prongs of the selective enforcement
claim—disparate impact and discriminatory intent—
require factual proof. See United States v. Arm-
strong, 48 F.3d 1508, 1513 (9th Cir. 1995) (en banc),
cert. granted, —- U.S. ——, 116 S.Ct. 377, 133 L.Ed.2d
301 (1995). The district court ordered discovery and
reviewed evidence from the aliens and from the
Government that would not be available in a deporta-
tion proceeding. The aliens have submitted to the
district court more than 450 pages of declarations,
exhibits, and transcripts in support of their claims.
In the course of factual development, for example, the
INS has conceded that Amer is the only alien that the
Los Angeles INS office has sought to deport for
taking too few credits as a student, even though many
such students have been reported to the INS. We
therefore find that the district court had jurisdiction
to consider these selective enforcement claims.
b. The Government's Counterarguments
The Government offers three additional arguments
to defeat district court jurisdiction. First, it sug-
gests that a selective enforcement claim in the immi-
gration context is inappropriate, because the decision
to enforce the immigration laws is a non-justiciable
political question involving foreign policy decisions
that are immune from judicial review. Second, the
Government claims that if such claims are viable, the
statutory scheme provides alternative mechanisms
for review in the agency or the appellate courts.
Third, the Government argues that even though
discretionary claims fall outside the statutory pro-
vision for exclusive review and exhaustion, we
should decline jurisdiction to consider these claims
89a
on prudential ripeness grounds. We consider each of
these arguments in turn.
(1) Political Question
The Government contends that the courts can-
not consider an alien’s selective enforcement claim
because the Government’s discretionary decision
implicates foreign policy concerns that are non-justi-
ciable political questions. See, e.g., Baker v. Carr
369 U.S. 186, 208-213, 82 S.Ct. 691, 705-708, 7 L.Ed.2d
663 (1962) (discussing foreign policy issues as a basis
for the political question doctrine).
_There is, however, clear precedent for judi-
cial recognition of selective enforcement claims.
Although alienage classifications are closely con-
nected to matters of foreign policy and national
security, see, e.g., Plyler v. Doe, 457 U.S. 202, 219
n.19, 102 S.Ct. 2382, 2395 n.19, 72 L.Ed.2d 786 (1982);
Fiallo v. Bell, 430 U.S. 787, 796, 97 S. Ct. 1473, 1480, 52
L.Ed.2d 50 (1977), “the judicial branch may examine
whether ; the political branches have used a foreign
policy crisis as an excuse for treating aliens arbitrar-
ily,” Shahla v. INS, 749 F.2d 561, 563 n.2 (9th Cir
1984); see also Yassini v. Crosland, 618 F.2d 1356,
1360 (9th Cir. 1980) (noting that “serious questions
might arise if the INS disregarded constitutional
protections). “[T}he presence of constitutional issues
with significant political overtones does not auto-
matically invoke the political question doctrine.”
INS v. Chadha, 462 U.S. 919, 942-43, 103 S.Ct. 2764
2779-80, 77 L.Ed2d 317 (1983). Thus, we can and
do review foreign policy arguments that are offered to
justify legislative or executive action when consti-
tutional rights are at stake. Jd. Contrary to the
90a
Government's suggestion, the foreign policy powers
which permit the political branches great discretion
to determine which aliens to exclude from entering
this country do not authorize those political branches
to subject aliens who reside here to a fundamentally
different First Amendment associational right. See,
e.g., Landon v. Plasencia, 459 U.S. 21, 25-26, 103
S. Ct. 321, 325-326, 74 L.Ed.2d 21 (1982) (explaining the
difference between exclusion of an alien upon initial
entry and deportation of aliens who have been in
the country); see also Charles D. Weisselberg, The
Exclusion and Detention of Aliens: Lessons From
the Lives of Ellen Knauff and Ignatz Mezei, 143 U.
Pa. L. Rev. 933, 939-47 (noting that the power of ex-
clusion stems from the sovereign power of the federal
government over its territory). If we were to decline
jurisdiction on this basis, we would, in essence,
proclaim that the courts have no essential function
in ensuring that aliens are not targeted by the INS
in retaliation for exercising their acknowledged
constitutional rights, and we would allow those rights
to be forfeited without redress. Clearly, the foreign
policy powers of the political branches do not extend
that far.
(2) Alternative Mechanisms for Review
We also reject the Government’s assertion that the
Hobbs Act provisions provide a mechanism by which
the courts of appeals may assume jurisdiction over
factual issues for which a record cannot be developed
in regular INS proceedings. See 28 U.S.C. § 2347(c)
(allowing remand to the agency for factual develop-
ment); 28 U.S.C. § 2347(b)(3) (allowing transfer to a
district court for a de novo trial on an ancillary
9la
matter). First, the remand provision is not applicable
in this instance. See, e.g., Ramirez-Gonzalez v. INS,
695 F.2d 1208, 1213 (9th Cir. 1983) (finding that
§ 2347(c) is inapplicable to INS proceedings, because
the regulations provide a means to petition to the BIA
to reopen the proceedings, in its stead); Ghorbani v.
I.N.S., 695 F.2d 784, 787 n.4 (9th Cir. 1982) (finding
that § 1105a(4), which requires judicial review of the
administrative record, precludes application of the
Hobbs Act provision for remand on matters for which
the agency lacks jurisdictional authority).
Second, because § 1105a allows transfer to a district
court exclusively for de novo review of citizenship
claims, the general transfer provision available else-
where under the Hobbs Act does not apply in the
immigration context. Compare 8 U.S.C. §§ 1105a(a)
(5), (7) with 28 U.S.C. § 2347(b)(3). Even those cir-
cuits that disagree with this circuit’s interpretation
that remand under § 2347(c) is not available have
declined to apply § 2347(b)(3) to authorize a transfer
under § 1105a to a district court for claims not
addressable before the IJ and BIA. See, e.g., Coriolan
v. INS, 559 F.2d 993, 1003 (5th Cir. 1977).
The Government mistakenly relies on Public Util.
Comm’r of Oregon v. Bonneville Power Admin., 767
F.2d 622 (9th Cir. 1985), which held that the courts
of appeals have exclusive jurisdiction of actions
challenging the constitutionality of administrative
proceedings under an act regulating utility rates. /d.
at 624-25. That case involved a question of the
breadth of the statutorily mandated jurisdiction,
where the wording of the statute was much broader
than the INS statute in the present case. See id. at
625-26. The statutory jurisdictional mandate in
§ 1105a is narrower and, in appropriate instances,
92a
permits equitable relief in the district court for
constitutional and procedural challenges. See
McNary v. Haitian Refugee Center, Inc., 498 U.S.
479, 484, 494, 111 S.Ct. 888, 892, 897, 112 L.Ed.2d 1005
(1991) (interpreting § 1105a in the IRCA context to
find district court jurisdiction to hear constitutional
and statutory challenges to INS procedures when
meaningful judicial review of the statutory and
constitutional claims otherwise would be foreclosed).
(3) Ripeness
The Government also argues that this court should
find that the district court lacked jurisdiction to
hear these selective enforcement claims because of
prudential ripeness concerns that are relevant to
its jurisdiction to grant equitable relief. In Adbott
Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507,
18 L.Ed.2d 681 (1967), the Supreme Court established
a two-pronged framework for ripeness analysis in
the administrative agency context: courts should
consider the fitness of the issues for judicial review
and the hardship to the parties involved. Jd. at 148-49,
87 S. Ct. at 1515-16. The “core principle” is that
statutory requirements should not be construed to
cause “irreparable injuries to be suffered” or the loss
of “crucial collateral claims.” Mathews v. Eldridge,
424 U.S. 319, 331 n.11, 96 S.Ct. 893, 900-01 n.11, 47
L.Ed.2d 18 (1976). We therefore agree with the Six
that their claim is ripe for review, because (1) the
chill to their First Amendment rights is an irre-
parable injury that cannot be vindicated by post-
deprivation review and (2) exhaustion through the
deportation proceeding would be futile, in that the lJ
and BIA cannot consider and develop facts about INS’
93a
enforcement policies, practices, or motives, which
are not subject to change through further agency
interpretation.
(a) Hardship
The Supreme Court’s overbreadth doctrine rests on
the proposition that an overbroad statute has a
enilling effect on First Amendment rights that can-
not be vindicated through the normal channels of
defense to a prosecution: that is, the legal and
practical value of the First Amendment right may
be destroyed if not vindicated before trial. See
Dombrowski v. Pfister, 380 U.S. 479, 486-89, 85 S. Ct.
1116, 1120-22, 14 L.Ed.2d 22 (1965). “The loss of First
Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury.”
Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2689,
49 L.Ed.2d 547 (1976). Courts thus grant extra-
ordinary relief because “(joining organizations that
participate in public debate, making contributions to
them, and attending their meetings are activities
that enjoy substantial First Amendment protection”
so that “the duration of a trial is an ‘intolerably long’
period during which to permit the continuing impair-
ment of First Amendment rights.” Jn re Asbestos
School Litigation (Pfizer Inc. v. The Honorable
James T. Giles), 46 F.3d 1284, 1294 (8d Cir. 1994).
Even in the context of state criminal prosecutions,
where federalism concerns raise additional barriers
to the federal courts’ exercise of equitable juris-
diction, federal courts refuse to abstain in cases
involving a bad faith prosecution that has little
expectation of a valid conviction or is initiated to
retaliate for or discourage the exercise of consti-
94a
tutional rights. See, e.g., Lewellen v. Raff, 843 F.2d
1103, 1109 (8th Cir. 1988) (finding that the district
court need not abstain when state prosecutors
brought charges against an African American
attorney in retaliation for his exercise of consti-
tutional rights), cert. denied, 489 U.S. 1033, 109 S. Ct.
1171, 103 L.Ed.2d 229 (1989). We find that the per-
petual threat of deportation based on group affiliation
constitutes the kind of irreparable injury that is
relevant to the ripeness inquiry here.
(b) Fitness.
We also agree with the Six that exhaustion would
be a futile exercise because the agency does not have
jurisdiction to review a selective enforcement claim.
Lopez-Telles, 564 F.2d at 1304. “If the agency lacks
authority to resolve the constitutional claims, there
is little point to requiring exhaustion.” Xiao v. Barr,
979 F.2d 151, 154 (9th Cir. 1992). Furthermore, we
customarily decline to apply the prudential ripeness
doctrine when exhaustion would be a futile attempt
to challenge a fixed agency position. See, e.g., El
Rescate Legal Serv. v. Executive Office of Immi-
gration Review, 959 F.2d 742, 747 (9th Cir. 1991).
Other circuits have similarly found exhaustion futile
unless “there is genuine doubt as to what is going to
happen in the administrative process.” Rafeedie v.
L.N.S., 880 F.2d 506, 514 (D.C. Cir. 1989).
Contrary to the Government’s assertion, our ear-
lier opinion in this case is not dispositive here. See
American-Arab Anti-Discrimination Committee,
970 F.2d at 510-12. We held that prudential concerns
weighed against the district court’s assuming ju-
risdiction of the unconstitutional-as-applied challenge
95a
to the 1952 Act, because the factual record developed
in the agency proceeding to support the application of
the statute would assist our review of that claim. Jd.
at 510-511. In contrast, this case does not involve a
facial or as-applied challenge to a statute. These
selective enforcement claims are not moot now, and
the speculative possibility that they may be rendered
moot in the future is not sufficient to require futile
exhaustion of administrative remedies. Therefore,
we hold that the district court properly exercised
jurisdiction over the nonimmigrant aliens’ selective
enforcement claims.
2. The Permanent Resident Aliens, Hamide and
Shehadeh
The two permanent resident aliens, Hamide and
Shehadeh, also contend that the district court had
jurisdiction to consider their selective enforcement
claims. Unlike the Six, Hamide and Shehadeh have
been charged solely under provisions, in both the 1952
Act and the IMMACT, that are based on affiliation
with disfavored political organizations. Because the
posture in which their claims are presented is differ-
ent from that of the claims of the Six, we consider
them separately.
The basis for jurisdiction over Hamide’s and
Shehadeh’s claims is essentially the same as that
found to support district court jurisdiction for the
Six. The exclusive mechanism for judicial review of a
final deportation order does not provide a means
of review of a selective enforcement claim for which
the IJ and BIA lack adjudicatory authority. See the
discussion in Part LA.l.a. supra. Although the
Government asserts that no factual development is
96a
necessary beyond that which the Government will
provide in the deportation proceeding as part of its
case under the IMMACT, the agency proceeding can-
not develop a factual record regarding patterns and
practices of the INS treatment of aliens who may be
similarly situated supporters of lawful activities
of alleged terrorist organizations. Jd. Thus, the legal
arguments in Part I.A.l.a. apply as well to Hamide
and Shehadeh: their selective enforcement claims can
be considered only in the district court.
The Government argues—and the district court
ultimately agreed—that the ripeness concerns rele-
vant to these claims are different because the motive
for targeting Hamide and Shehadeh cannot be con-
sidered truly pretextual, in that both the 1952 Act and
the IMMACT provisions under which they are
currently charged treat some aspect of affiliation as
a bas
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