American-Arab Anti-Discrimination Committee v. Thornburgh

Page 501

970 F.2d 501

AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE, Arab-American Democratic Federation, Association of Arab-American University Graduates Irish National Caucus, et al Plaintiffs-Appellees, v. Richard THORNBURGH, ^* Attorney General; Alan C. Nelson, Commissioner, INS, Harold Ezell; Ernest E Gustafson, District Director, U.S. Immigration and Naturalization Service, Defendants-Appellants.

No. 89-55358.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 10, 1990.

Decided July 26, 1991.

As Amended on Denial of Rehearing

and Rehearing En Banc July 20, 1992.

Stuart E. Schiffer, Acting Asst. Atty. Gen., Steven Richards Valentine, Deputy Asst. Atty. Gen., Douglas Letter, Appellate Litigation Counsel, Linda S. Wendtland, Civil Div., Dept. of Justice, Washington, D.C., for defendants-appellants.

David Cole, Michael Ratner, Center for Constitutional Rights, New York City, Paul L. Hoffman, Mark D. Rosenbaum, Carol Sobel, ACLU Foundation of Southern California, Los Angeles, Cal., for plaintiffs-appellees.

Appeal from the United States District Court for the Central District of California.

Before: POOLE and THOMPSON, Circuit Judges, and PRO, District Judge. ^**

POOLE, Circuit Judge:

The government appeals from the district court's declaratory judgment that sections 241(a)(6)(D), (F)(iii), (G)(v), and (H) of the McCarran-Walter Act of 1952, codified in 8 U.S.C. §§ 1251(a)(6)(D), (F)(iii), (G)(v), and (H) (the Act), are unconstitutionally overbroad in violation of the first amendment. ¹ We affirm in part, reverse in part, vacate the judgment and remand for proceedings not inconsistent with this opinion.

FACTS

In January 1987, the Immigration and Naturalization Service ("INS") detained plaintiffs-appellees (individual appellees), Bashar Amer, Ayman Mustafa Obeid, Julie Nuangugi Mungai, Aiad Khaled Barakat, Naim Nadim Sharif, and Amjad Mustafa Obeid, all non-immigrant aliens, for routine status, non-ideological violations under 8 U.S.C. §§ 1251(a)(2) and 1251(a)(9), and for violations of section 1251(a)(6) because of their membership in the Popular Front for the Liberation of Palestine (PFLP). PFLP is an organization which the government alleges advocates and teaches the "international and governmental doctrines of world communism," as recited in section 1251(a)(6)(D). Specifically, the INS alleged that the individual appellees violated sections 1251(a)(6)(D), (G)(v), and (H). In January 1987, the INS also began deportation proceedings against Khader Musa Hamide and Michel Ibrahim Shehadeh, permanent resident aliens, for their membership in the PFLP, alleging violations of sections 1251(a)(6)(D), (G)(v), and (H). On April 23, 1987, four days prior to the hearing set in this case by the district judge to consider plaintiffs' request for a preliminary injunction, the INS dropped its section 1251(a)(6) charges against the individual appellees, but retained the non-ideological charges. ² The INS also changed the charges against Hamide and Shehadeh, alleging that they had violated section 1251(a)(6)(F)(iii). ³

PROCEDURAL HISTORY

On April 3, 1987, the individual appellees, joined by various organizations, including the American-Arab Anti-Discrimination Committee (American-Arab), and Hamide and Shehadeh, filed this complaint in the District Court for the Central District of California claiming that section 1251(a)(6)(D) violated the first and fifth amendments, that the government engaged in selective prosecution in violation of the first and fifth amendments, and that the INS procedures could not provide them with a fair and impartial hearing. They sought declaratory and injunctive relief. On May 12, 1987, the complaint was amended to include first and fifth amendment challenges to sections 1251(a)(6)(D), (F)(iii), (G)(v), and (H), and to include the claim that government misconduct deprived plaintiffs of due process. On May 21, 1987, the district judge dismissed Hamide's and Shehadeh's claims as to sections 1251(a)(6)(F)(iii) for lack of jurisdiction and stayed the other claims pending a ruling by this court on the petition for writ of mandamus. Hamide and Shehadeh's petition for writ of mandamus was denied by order of this court on February 24, 1988. Hamide v. United States District Court for the Central District of California, No. 87-7249.

On June 15, 1988, plaintiffs filed a second amended complaint which retained their first and fifth amendment challenges but added a challenge to the Foreign Relations Authorization Act, (FRAA) Fiscal Years 1988 and 1989, Pub.L. No. 100-204, § 901, 101 Stat. 1331, 1399 (1987) (amended October 1, 1988). In a published memorandum opinion and order, American-Arab Anti-Discrimination Committee v. Meese, 714 F.Supp. 1060, 1084 (C.D.Cal.1989), the district judge concluded that the challenged provisions of the McCarran-Walter Act were substantially overbroad in violation of the first amendment. The court accordingly granted plaintiffs' motion for summary judgment and request for declaratory relief. However, believing that declaratory relief provided an adequate remedy at law, the district court denied injunctive relief. Id. at 1063. The district court also held that, given this relief, there was no need to address the challenge to the constitutionality of the FRAA. Id. On January 26, 1989, the district court directed entry of final judgment pursuant to Fed.R.Civ.P. 54(b). The district court retains jurisdiction over appellees' remaining claims. We have jurisdiction over final orders pursuant to 28 U.S.C. § 1291.

THE DISTRICT COURT'S RULING

In his memorandum opinion and order, the trial judge first considered whether the individual and organizational plaintiffs had standing. Id. at 1064-74. He determined that he was without jurisdiction to hear the constitutional challenges of Hamide and Shehadeh. Id. at 1064. They do not appeal this determination. The court held that the other individual appellees had standing because, although they were not presently charged under the challenged provisions of the McCarran-Walter Act, they had shown that they were in jeopardy of being so charged in the future. The court held that the government's continuing belief that the individual appellees belonged to a world-wide "communist" organization, the government's unwillingness to disavow any intent to bring the same charges against the individual appellees, the fact that the government's current manifestation of its willingness to use similar McCarran-Walter Act provisions against Hamide and Shehadeh on account of their membership in the PFLP, and the individual appellees' expressed intent to continue to engage in the conduct for which they were originally charged, all supported the finding of their standing. Id. at 1064-71. The court dismissed all the organizational plaintiffs except American-Arab. Id. at 1071-72. The dismissed organizations do not appeal.

On the merits, the court determined that aliens are entitled to the same degree of first amendment protections as are citizens. Id. at 1082. Therefore, applying the test articulated in Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), the court held that the challenged statutory provisions were substantially overbroad under the first amendment because they penalized both protected and unprotected speech. 714 F.Supp. at 1082-84.

DISCUSSION

We agree with the district court that the individual appellees have standing. We nevertheless determine that the district court should have stayed its exercise of jurisdiction because, in our view, the first amendment issues tendered by appellees are not ripe for review. We therefore vacate the district court's order as to the substantive issues. We reverse the declaratory judgment, and we remand the case to the district court for further proceedings not inconsistent with this opinion.

I. Justiciability--Standing

The government argues that appellees' claims are not justiciable because they do not have standing. We review de novo the district court's determination that the individual appellees and American-Arab do have standing, Polykoff v. Collins, 816 F.2d 1326, 1331 (9th Cir.1987), while the underlying factual determinations are reviewed under the clearly erroneous standard. Id.

A. Standing and the Individual Appellees

Under Article III of the Constitution, it is a jurisdictional prerequisite that plaintiffs present an actual "case or controversy". Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984); San Francisco County Democratic Central Comm. v. Eu, 826 F.2d 814, 821 (9th Cir.1987), aff'd 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989). To satisfy this requirement plaintiffs must show, inter alia, that they have standing. Thus, plaintiffs must demonstrate:

"at an irreducible minimum ... 'that [they] personally [have] suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,' Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1607, 60 L.Ed.2d 66] (1979), and that the injury 'fairly can be traced to the challenged action' and 'is likely to be redressed by a favorable decision,' Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976)." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).

The essence of the government's standing argument with respect to the individual appellees is that they cannot show an immediate threat of harm. The government argues that, although once charged with the challenged provisions, the individual appellees are not now so charged. The government additionally argues that there is no imminent likelihood that they will again be charged under the challenged provisions. It notes that the only pending proceedings against the individual appellees are for...