880 F.2d 506 (D.C. Cir. 1989), 88-5240, Rafeedie v. I.N.S.

Docket Nº:88-5240, 88-5267.
Citation:880 F.2d 506
Party Name:Fouad Yacoub RAFEEDIE v. IMMIGRATION & NATURALIZATION SERVICE, an Agency of the Federal Government, et al., Appellants. Fouad Yacoub RAFEEDIE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, et al.
Case Date:July 21, 1989
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 506

880 F.2d 506 (D.C. Cir. 1989)

Fouad Yacoub RAFEEDIE

v.

IMMIGRATION & NATURALIZATION SERVICE, an Agency of the

Federal Government, et al., Appellants.

Fouad Yacoub RAFEEDIE, Petitioner,

v.

IMMIGRATION & NATURALIZATION SERVICE, et al.

Nos. 88-5240, 88-5267.

United States Court of Appeals, District of Columbia Circuit.

July 21, 1989

Argued Oct. 31, 1988.

Page 507

Appeals from the United States District Court for the District of Columbia (Civil Action No. 88-00366).

Steven R. Valentine, Deputy Asst. Atty. Gen., Dept. of Justice, with whom John R. Bolton, Asst. Atty. Gen., and Douglas Letter, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellants in No. 88-5240 and appellees in No. 88-5267.

David Cole, with whom Timothy B. Dyk, Kerry W. Kircher and Michael Maggio, Washington, D.C., were on the brief, for appellee in No. 88-5240 and cross-appellant in No. 88-5267.

Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., were on the brief for amici curiae, urging reversal.

Before RUTH B. GINSBURG, SILBERMAN and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

Concurring opinion filed by Circuit Judge RUTH B. GINSBURG.

Dissenting opinion filed by Circuit Judge SILBERMAN.

D.H. GINSBURG, Circuit Judge:

Defendants Immigration and Naturalization Service and several governmental officers sued in their official capacities (treated collectively here) appeal from an order of the district court insofar as it granted a preliminary injunction prohibiting the INS from conducting exclusion proceedings against plaintiff Fouad Yacoub Rafeedie. Rafeedie cross-appeals the order to the extent that it denied his motion for partial summary judgment on his substantive challenge to the exclusion proceedings.

The Government's interlocutory appeal is as of right pursuant to 28 U.S.C. Sec. 1292(a)(1). The district court certified, and we allowed, Rafeedie's cross-appeal pursuant to 28 U.S.C. Sec. 1292(b).

  1. STATUTORY SCHEME

    On entry (or reentry) into the United States, "[e]very alien ... who may not appear to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to land" is detained for further inquiry. 8 U.S.C. Sec. 1225(b). Should the INS believe it to be in the public interest to do so, however, it may "parole" the alien into the United States pending the outcome of that inquiry. 8 U.S.C. Sec. 1182(d)(5)(A). If, upon investigation, the INS determines that the alien is excludable, it initiates exclusion proceedings against him. Such proceedings may take one of two forms: plenary proceedings under Sec. 236 of the Immigration and Nationality Act, 8 U.S.C. Sec. 1226, or summary proceedings under Sec. 235(c), 8 U.S.C. Sec. 1225(c).

    Plenary exclusion proceedings under Sec. 236 are conducted before an Immigration Judge (IJ), who is an officer of the Justice Department but independent of the INS. 8 C.F.R. Part 3. The alien has the right to be represented by counsel and must be so

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    apprised. 8 C.F.R. Sec. 236.2(a). The proceedings are on the record, and the alien has the right to have them open to the public and the press. Id. He has the opportunity to present evidence and to cross-examine witnesses. 8 U.S.C. Sec. 1226; 8 C.F.R. Sec. 236.2(a). If the alien is a permanent resident (like Rafeedie), then the burden is on the INS to establish his excludability. Kwong Hai Chew v. Rogers, 257 F.2d 606 (D.C.Cir.1958). Finally, any decision to exclude the alien is appealable to the Board of Immigration Appeals, 8 C.F.R. Secs. 236.7, 3.36(a), 3.1(b)(1).

    Summary proceedings under Sec. 235(c) may be used only against an alien who appears to be excludable under certain enumerated sections of the Act, including the following two provisions invoked against Rafeedie:

    (27) Aliens who the consular officer or the Attorney General knows or has reason to believe seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States.

    (28) ... (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 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; or (iv) sabotage....

    8 U.S.C. Secs. 1182(a)(27), (28)(F). In such a case, the examining immigration officer at the port of arrival, "if possible, take[s] a brief sworn question-and-answer statement from the alien," advises the alien of his "right to make written representations," temporarily excludes the alien, and reports the case to the appropriate INS District Director. 8 C.F.R. Sec. 235.8(a). The District Director then forwards the case to the Regional Commissioner, who considers it "together with such written statement and accompanying information, if any, as the alien or his representative may desire to submit...." 8 U.S.C. Sec. 1225(c). The alien is not entitled to a hearing, or to confront the evidence against him.

    If the information supporting the exclusion is "of a confidential nature the disclosure of which would be prejudicial to the public interest, safety, or security," it need not be disclosed to the alien, id. at 235.8(b), and the Regional Commissioner may summarily exclude him and order him deported. If the decision of the Regional Commissioner contains confidential information, then no more than "a separate order showing only the ultimate disposition of [the alien's] case" need be served upon him. 8 C.F.R. Sec. 235.8(c). There is no appeal. Id.

  2. FACTS

    Rafeedie was born in Jordan in 1957 and came to the United States in 1975 on an immigrant visa. He has been a lawful permanent resident alien for the fourteen years since arriving here. He currently lives in Ohio with his wife and child, both of whom are United States citizens, and has 34 other relatives, including his mother, living in the United States. Rafeedie was educated in the United States and has a job here. He has been politically active while living in this country, being particularly outspoken--in articles and on radio and television--in his opposition to American policies with respect to the Middle East. In 1981 or 1982, Rafeedie applied to become a naturalized citizen, but his petition for naturalization has yet to be finally adjudicated. He alleges that the INS has been dilatory in processing his application.

    On April 7, 1986, Rafeedie applied for and obtained a reentry permit from the INS so that he could take a trip abroad. He stated on his application for the permit that he wished to go to Cyprus to be with his mother while she underwent "major heart surgery"; three days later, he obtained a visa to travel to Syria. In truth, Rafeedie's mother lives in Youngstown, Ohio.

    Page 509

    The INS claims that Rafeedie went to Syria with Tarak Mustafa and Sulieman Shihadeh and that, while there, the three men attended the First Conference of the Palestine Youth Organization (PYO). The INS further claims that the PYO is affiliated with the Popular Front for the Liberation of Palestine (PFLP), and that the PFLP is a terrorist organization and a "constituent group" of the Palestine Liberation Organization (PLO). Rafeedie categorically denies that he has ever been "a member of or in any way affiliated with" the PLO, the PFLP, or any other organization "that engages in or supports terrorism," and states that he has never engaged in any terrorist activity.

    When Rafeedie, Mustafa, and Shihadeh arrived in New York from Syria, they were questioned by INS and FBI officers. When their inspection at the airport was completed, Rafeedie was paroled for deferred inspection, and he returned to his home in Ohio. During the deferred inspection, Rafeedie said that he had not gone to Cyprus after all because his sister had called to tell him his mother's surgery had been cancelled. The INS asked (on three separate occasions) for information to corroborate that claim; Rafeedie did not respond.

    In the spring of 1987, the INS charged Rafeedie with being excludable from the United States, pursuant to Secs. 212(a)(27) and (28)(F) of the Act, 8 U.S.C. Secs. 1182(a)(27), (28)(F). [*] His case was then referred to an IJ for a plenary hearing under Sec. 236.

    In December 1987, the IJ granted Rafeedie's request for an order requiring the INS to give him specific notice of the basis for the charges against him and to tell him whether the INS was subjecting him to electronic surveillance. One business day before it would have had to comply with the IJ's order, however, the INS informed Rafeedie that, at some time after charging him with being excludable under Secs. (27) and (28)(F), it had received confidential information supporting some of those charges. The Service thus temporarily excluded him pursuant to Secs. (27) and (28)(F) and instituted summary exclusion proceedings under Sec. 235(c). The INS served Rafeedie with "specific factual allegations of excludability," but it gave him no indication of the nature of the confidential information upon which it relied to use summary proceedings. On the Government's motion, the IJ closed the Sec. 236 exclusion proceeding pending before him and excused the Service from complying with his earlier order.

    Rafeedie then filed suit in the district court claiming that Sec. 235(c) may not be applied to him. Of his various grounds in support of that claim, the two relevant to this appeal are (1) that Sec. 235(c) may not, by its terms, be applied to a permanent resident alien; and (2) that, if it can be applied to a permanent...

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