American-Arab Anti-Discrimination Committee v. Reno

119 F.3d 1367, 1997 WL 395300
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 10, 1997
DocketNos. 96-55929, 97-55479
StatusPublished
Cited by20 cases

This text of 119 F.3d 1367 (American-Arab Anti-Discrimination Committee v. Reno) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American-Arab Anti-Discrimination Committee v. Reno, 119 F.3d 1367, 1997 WL 395300 (9th Cir. 1997).

Opinion

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 Responsibility Act of 1996 (“IIRIRA”), 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 subsection (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 Immigration and Naturalization Service (“INS”) to commence deportation proceedings against seven native Palestinians 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 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 [1370]*1370Obeid, Amjad Obeid, Michel Ibrahim Shehadeh, and Bashar Amer, (“Plaintiffs”), have participated in PFLP 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, publications, and political organizing.” The government avers that the PFLP is an international terrorist and communist organization, but does not dispute the district court’s finding that the organization conducts 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 ease 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 violations. 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____ [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., 1st 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 PFLP.” American-Arab I, 70 F.3d at 1053.

Following the repeal of the 1952 Act, the INS commenced proceedings against Hamide and Shehadeh under the “terrorist activity” provision of the Immigration 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 “[a]ny alien who has engaged, is engaged, or at any time after entry engages in terrorist activity”).1

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 staying 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. AmericarirArab 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 Americanr-Arab I, the government argues that the deportation proceedings were initiated for permissible reasons. Specifically, the government cites to materials detailing [1371]*1371the Plaintiffs’ support of PFLP fundraising activities and argues that under the applicable First Amendment standard, the Plaintiffs may be sanctioned for this behavior.

In addition, while this appeal was pending, the government filed motions to dismiss the ease both with the district court and with this panel. The government 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).

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Bluebook (online)
119 F.3d 1367, 1997 WL 395300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-arab-anti-discrimination-committee-v-reno-ca9-1997.