American-Arab Anti-Discrimination Committee v. Reno

Page 1045

70 F.3d 1045

95 Cal. Daily Op. Serv. 8608, 95 Daily Journal

D.A.R. 14,893

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

Mustafa 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.

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 De la

Vina; Ernest E. Gustafson; Richard K. Rogers,

District Director; Immigration &

Naturalization Service,

Defendants-Appellants.

Nos. 94-55405, 94-55444 and 95-55177.

United States Court of Appeals, Ninth Circuit Argued and Submitted April 7, 1995.

Decided Nov. 8, 1995.

Marc Van Der Hout, National Lawyers Guild, San Francisco, California; Dan Stormer, Hadsell & Stormer, Pasadena, California; David Cole, Ctr. for Constitutional Rights, Georgetown University Law Center, argued, Washington, D.C.; Paul L. Hoffman, Mark D. Rosenbaum, Carol Sobel, A.C.L.U. Foundation of Southern California, Los Angeles, California; John Scanlan, Indiana University School of Law, Bloomington, Indiana, for plaintiffs-appellants in No. 94-55405.

Douglas Letter and Steven R. Valentine, United States Department of Justice, Washington, D.C.; Michael P. Linderman and Linda S. Wendtland, Office of Immigration Litigation, Washington, D.C.; Michael C. Johnson, Assistant United States Attorney, Los Angeles, California, for defendants-appellees in No. 94-55405.

Douglas Letter, United States Department of Justice, Washington, D.C.; Michael P. Linderman, Office of Immigration Litigation, Washington, D.C.; Michael C. Johnson, Assistant United States Attorney, Los Angeles, California, for defendants-appellants in No. 94-55444.

Paul L. Hoffman, Mark D. Rosenbaum, Carol Sobel, A.C.L.U. Foundation of Southern California, Los Angeles, California; Marc Van Der Hout, National Lawyers Guild, San Francisco, California; David Cole, Ctr. for Constitutional Rights, Georgetown University Law Center, argued, Washington, D.C., for plaintiffs-appellees in No. 94-55444.

Michael S. Raab and Douglas Letter, United States Department of Justice, Washington D.C.; Michael C. Johnson, Assistant United States Attorney, Los Angeles, California; Michael P. Linderman, Office of Immigration Litigation, Washington, D.C., for defendants-appellants in No. 95-55177.

Paul L. Hoffman, Mark D. Rosenbaum, Carol Sobel, A.C.L.U. Foundation of Southern California, Los Angeles, California; Marc Van Der Hout, National Lawyers Guild, San Francisco, California; David Cole, Ctr. for Constitutional Rights, Georgetown University Law Center, argued, Washington, D.C., for plaintiffs-appellees in No. 95-55177.

Appeals from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding.

Before D.W. NELSON, CANBY, Circuit Judges, and TANNER, District Judge ^*.

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 ¹ 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. Sec. 1101 et seq. (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 referenced as "Hamide and Shehadeh"). In No. 94-55444, the Attorney General and the Immigration and Naturalization Service appeal the grant of a preliminary injunction against further deportation proceedings 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 pursuant 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. Sec. 1255a (1994). We have jurisdiction to review orders granting or denying a preliminary injunction under 28 U.S.C. Sec. 1292(a)(1) (1988) and jurisdiction to review the district court's final order granting a permanent injunction under 28 U.S.C. Sec. 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 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") ² for membership in an organization, the Popular Front for the Liberation of Palestine ("PFLP"), that allegedly advocates the doctrines of world communism. In addition, the Six were charged with non-ideological immigration violations under 8 U.S.C. Sec. 1251(a)(2) (1988) (overstaying a visa). Amer was also charged under 8 U.S.C. Sec. 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 employment. In February, 1987, Mungai was also charged under the McCarran-Walter Act, 8 U.S.C. Sec. 1251(a)(6)(D), (G), and (H).

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. Sec. 1251(a)(6) 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. Sec. 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. Sec. 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 "[a]ll of them were arrested because they are alleged to be 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., 1st 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 PFLP.

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 unsuccessfully 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 Committee v. Thornburgh, 970 F.2d 501, 511 (9th Cir.1991). Ruling on the claims of the Six, the district court found the...