Reno, Attorney General v. American-Arab Anti-Discrimination Committee, et al. (02/24/1999)

By: Kristin Cleary, Medill News Service

Questions presented

Whether, in light of the Illegal Immigration Reform and Immigrant Reponsibility Act, the courts below had jurisdiction to entertain respondents' challenge to the deportation proceedings prior to the entry of a final order of deportation?

Brief

In 1987, seven Palestinians and a Kenyan married to a Palestinian were arrested in Los Angeles for their alleged involvement with the Popular Front for the Liberation of Palestine (PFLP), a faction of the Palestinian Liberation Organization. Six of the Palestinians were living in America under temporary or student visas; the other two were permanent resident aliens.

The INS charged all eight--Bashar Amer, Aiad Barakat, Julie Mungai, Amjad Obeid, Ayman Obeid, Naim Sharif, Khader Hamide, and Michel Shehadeh--under the McCarran-Walter Act, which, though now repealed, provided at the time for the deportation of aliens who ""advocate"" world communism.

The FBI had been investigating the eight Muslims for months, scrutinizing their activity with the PFLP, which had taken responsibility for terrorist acts in the Middle East in the past. Although the FBI concluded that there was no evidence that the aliens, known as the ""L.A. 8,"" engaged in criminal or terrorist activity, the FBI encouraged Immigration and Naturalization Services to deport the group, according to lawyers on both sides of the argument. INS began deportation proceedings against the L.A. 8 for their distribution of literature, recruitment of members and fundraising efforts for the PFLP.

Shortly after deportation proceedings began, the L.A. 8 challenged the INS proceedings, claiming they violated their 1st Amendment rights by disallowing them to engage in constitutionally-protected political activities.

(Barakat and Sharif were subsequently granted legalization and by the time the case was heard by the U.S. Supreme Court, they were no longer deportable based on the original status violations.)

While their suit was pending, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which contains a provision restricting judicial review of the Attorney General's ""decision or action"" to ""commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.""

The District Court of Central California ruled in favor of the American-Arab Anti-Discrimination Committee, which brought the suit on behalf of the Palestinians. The court entered an injunction barring the INS from proceeding with the deportation hearings.

On July 10, 1997, the 9th Circuit Court of Appeals affirmed the district court's decision to bar deportation proceedings. The appeals court also held that the plaintiffs have a 1st Amendment right to raise funds and promote legal activities for an organization as long as their work doesn't support or further illegal activities. A petition for en banc review was denied with three appeals judges dissenting.

The U.S. Supreme Court granted certiorari on June 1, 1998, limiting review to one question: whether the provision in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 deprives the federal courts of jurisdiction over the suit.

""The issue before the Supreme Court is whether aliens suffering on-going 1st Amendment injuries have a right to go to federal court to seek immediate relief from these injuries,"" said David Cole of Georgetown University's Center for Constitutional Rights, who argued the case on behalf of the American-Arab Anti-Discrimination Committee.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 prevents a court from reviewing INS deportation proceedings until a final order is entered. Because no final decision had been entered at the time of the plaintiff's challenge, the INS and the Justice Department claimed that the lower courts did not have jurisdiction to consider the committee's 1st Amendment defenses.

""As it is now, you have to wait until the INS has exhausted their criminal investigations,"" Cole said. ""A primary concern of ours is that these proceedings can take years to conclude. During that entire amount of time, our clients would be suffering because they can't participate in the activities protected by the 1st Amendment for fear that the government will use it against them.

""You have to exhaust the very proceeding that you're saying violates your 1st Amendment rights.""

On Feb. 24, 1999, the Court reversed and remanded, holding that the 1996 law applied ""without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings."" In an 8-1 vote, with multiple concurrences, Justice Antonin Scalia wrote for the majority that notwithstanding the ""parties' interpretive acrobatics,' the 1996 lawbarred the federal courts from having jurisdiction to entertain a challenge to the deportation proceedings prior to the entry of a final order of deportation.

Despite limiting review to one question, the majority went on to find that the doctrine of constitutional doubt is inapplicable to the case. ""As a general matter and assuredly in the context of claims such as those put forward in the present case, an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation,"" Justice Scalia wrote. 'When an alien's continuing presence in this country is in violation of the immigration laws, the Government does not offend the Constitution by deporting him for theadditional reason that it believes him to be a member of an organizationthat supports terrorist activity.""

In concurring, Justices Ruth Bader Ginsburg and Stephen Breyer agreed that the 1996 law deprived the federal courts of jurisdiction over respondents' pre-final-order suit but wrote that they would not prejudge the question of whether the respondents could assert a selective enforcement objection when and if they pursued such review.

Justice David Souter dissented, noting that the approach he would take would not decide whether selective prosecution claims have vitality in theimmigration context. In criticizing the majority for addressing the very question it precluding in limiting review to one question, Souter wrote, ""No doubt more could be said with regard to the theory of selective prosecution in the immigration context, and I do not assume that the Government would lose the argument. That this is so underscores the danger of addressing an unbriefed issue that does not call for resolution even onthe Court's own logic.""