American Arab Anti-Discrimination Com. v. Meese, CV 87-02107-SVW.

Citation714 F. Supp. 1060
Decision Date31 August 1989
Docket NumberNo. CV 87-02107-SVW.,CV 87-02107-SVW.
PartiesAMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE, et al., Plaintiffs, v. Edwin MEESE, III, et al., Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California

Paul L. Hoffman, ACLU Foundation of So. California, Dan Stormer, National Lawyers Guild, Los Angeles, Cal., Marc Van Der Hout, National Lawyers Guild, San Francisco, Cal., David Cole, Michael Ratner, Center For Constitutional Rights, New York City, Wade Henderson, Hope Nakamura, American Civil Liberties Union, Washington, D.C., Peter Schey, Nat. Center for Immigrants Rights, Inc., Los Angeles, Cal., for plaintiffs.

George H. Wu, Asst. U.S. Atty., Los Angeles, Cal., for defendants.

WILSON, District Judge.

Plaintiffs Khader Musa Hamide and Michel Ibrahim Shehadeh ("Hamide and Shehadeh"); Bashar Amer, Ayman Mustafa Obeid, Julie Nuangugi Mungai, Aiad Khaled Barakat, Naim Nadim Sharif, Amjad Mustafa Obeid ("Other Six"); American-Arab Anti-Discrimination Committee, Arab-American Democratic Federation, Association of Arab American University Graduates, Irish National Caucus, Palestine Human Rights Campaign, American Friends Service Committee, League of United Latin American Citizens, Michel Bogopolsky, Darrel Meyers, and Southern California Interfaith Task Force on Central America ("Organizational Plaintiffs") move the Court for summary judgment and for declaratory and injunctive relief. They challenge the constitutionality of Sections 241(a)(6)(D), (F)(iii), (G)(v), and (H) of the McCarran-Walter Act of 1952, ("McCarran-Walter provisions"), codified in 8 U.S. C. §§ 1251(a)(6)(D), (F)(iii), (G)(v), and (H),1 and of Sections 901(a) and 901(b) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 ("FRAA"), Pub.L. No. 100-204, § 901, 101 Stat. 1331, 1399 (1987) (amended October 1, 1988).2

Defendants Edwin Meese, III, Alan Nelson, Harold Ezell, Ernest Gustafson, and the Immigration and Naturalization Service ("Government") move the Court to dismiss the action for lack of jurisdiction and for failure to state a claim or for judgment on the pleadings.

We conclude that the Other Six and the American-Arab Anti-Discrimination Committee ("ADC") have standing to challenge the McCarran-Walter provisions. On the merits, we hold that aliens who are legally within the United States are protected by the First Amendment of the United States Constitution and that this protection is not limited in the deportation arena by the Government's plenary immigration power. Applying established First Amendment principles, we find that the McCarran-Walter provisions are substantially overbroad in violation of the First Amendment. We therefore grant Plaintiffs' motion for summary judgment and request for declaratory relief. As these rulings provide Plaintiffs with an adequate remedy at law, we deny their request for injunctive relief. See Beacon Theatres v. Westover, 359 U.S. 500, 509, 79 S.Ct. 948, 956, 3 L.Ed.2d 988 (1959). We further deny the Government's motion for judgment on the pleadings and its motion to dismiss for lack of jurisdiction or failure to state a claim. Our holding that all aliens are entitled to First Amendment protections in the deportation setting obviates the need to address the constitutionality of Sections 901(a) and 901(b) of the FRAA.


The Immigration and Naturalization Service ("INS") first commenced deportation proceedings against Hamide, Shehadeh, and the Other Six in January of 1987 alleging that these aliens were deportable under the McCarran-Walter provisions. Specifically, the Government charged them with being members of or affiliated with the Popular Front for the Liberation of Palestine ("PFLP"), an organization that advocated the economic, international and governmental doctrines of world communism through written and/or printed publications issued on or under the authority of such organization. On April 23, 1987, the INS abandoned the proceedings against all the aliens on these charges. New McCarran-Walter Act charges were brought against Hamide and Shehadeh under Section 241(a)(6)(F)(iii) of the McCarran-Walter Act ("Section (F)(iii)") while the Other Six were charged with non-ideological immigration violations under 8 U.S.C. §§ 1251(a)(2) and 1251(a)(9).

This Court first heard challenges to the deportation proceedings and the constitutionality of the McCarran-Walter provisions in April of 1987. In our May 21, 1987 and June 3, 1987 Orders, we held that the matter was not ripe for decision because Hamide and Shehadeh had not exhausted their administrative remedies with the INS and because a direct review of the statute was available through mandamus to the Ninth Circuit Court of Appeals. The Court of Appeals in its February 24, 1988 Order agreed that the case was not justiciable and refused to review the statute because Hamide and Shehadeh had not exhausted their administrative remedies.

In 1987, after we first held hearings in this matter, Congress passed the FRAA which provided in Section 901(a), inter alia, that aliens could not be deported on the basis of expression or beliefs that would be protected by the First Amendment if engaged in by United States citizens. Section 901(b) of the FRAA carved out several exceptions to the general rule stated in Section 901(a). In particular, Section 901(b) excepts members of the PLO from the protection of Section 901(a).3 This statute was thereafter modified in October 1988 so that it applied only to nonimmigrant aliens.4

After the Ninth Circuit's decision, Hamide, Shehadeh, the Other Six, and the Organizational Plaintiffs again asked this Court to review the constitutionality of the McCarran-Walter provisions and Section 901(a) and Section 901(b) of the FRAA. We first address their standing to make these challenges.

A. Standing of Hamide and Shehadeh

In its May 21, 1987 and June 3, 1987 Orders, this Court dismissed Hamide and Shehadeh's claim on the basis that they could seek interlocutory review of their claim by the Ninth Circuit under the All Writs Act, 28 U.S.C. § 1651. In its February 24, 1988 Order, the Ninth Circuit denied Hamide and Shehadeh's petition for a writ of mandamus. Hamide v. United States District Court, No. 87-7249 (9th Cir. Feb. 24, 1988). The Court of Appeals expressly declined to consider the constitutional issue posed by the petition, stating that the petitioners had not exhausted their administrative remedies. In addition, the Court of Appeals ruled that this Court lacked jurisdiction to hear Hamide and Shehadeh's constitutional challenge to Section (F)(iii).

Since Hamide and Shehadeh have still not exhausted their administrative remedies and the Ninth Circuit retains exclusive jurisdiction under 8 U.S.C. § 1105a to review their final deportation order, this Court lacks jurisdiction to hear their claim. Acting pursuant to the Ninth Circuit's Order, this Court denies standing to Hamide and Shehadeh to challenge the McCarran-Walter provisions or Section 901 of the FRAA.

B. Standing of the Other Six

Under Article III of the United States Constitution and the express terms of the Federal Declaratory Judgment Act, 28 U.S. C. § 2201, federal courts may hear legal claims only if they arise from an "actual controversy."5 A case or controversy requires a plaintiff to have a personal stake in the outcome sufficient to assure an adversarial presentation of the case. See Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); Hardwick v. Bowers, 760 F.2d 1202, 1204 (11th Cir. 1985), rev'd on other grounds, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986); see also Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 1755, 32 L.Ed.2d 257 (1972) (an "actual controversy" under the Declaratory Judgment Act exists when "`there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment'") (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941)).

For a plaintiff to have standing under Article III and the Declaratory Judgment Act, he or she must, "at an irreducible minimum," claim that he or she has "suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979). The case or controversy requirement is therefore closely related to the standing requirement. See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); San Francisco County Democratic Central Committee v. Eu, 826 F.2d 814, 822 (9th Cir.1987). Both standards depend on whether Plaintiffs can demonstrate that they face a sufficiently "real and immediate" threat of prosecution under the McCarran-Walter provisions and Section 901 of the FRAA. See City of Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S.Ct. 1660, 1665-66, 75 L.Ed.2d 675 (1983); Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113 (1969).

In defining what constitutes a "real and immediate" threat, courts have contrasted this type of threat to one that is merely "conjectural or hypothetical," Lyons, 461 U.S. at 102, 103 S.Ct. at 1665; Zwickler, 394 U.S. at 109-10, 89 S.Ct. at 960-61 "imaginary and speculative," Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215-16, 39 L.Ed.2d 505 (1974), or "chimerical," Poe v. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 1758, 6 L.Ed.2d 989 (1961). To allege a "real" threat in the First Amendment context, a plaintiff must show that the challenged law not only subjectively chills his First...

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8 cases
  • American-Arab Anti-Discrimination Committee v. Reno
    • United States
    • U.S. District Court — Central District of California
    • January 24, 1995
    ...identical to subsection (F)(iii) but was overturned by the Ninth Circuit on ripeness grounds. American-Arab Anti-Discrimination Committee v. Meese, 714 F.Supp. 1060 (C.D.Cal.1989), rev'd in relevant part, American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F.2d 501 (9th Cir.1991)......
  • American-Arab Anti-Discrimination Committee v. Reno
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 8, 1995 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......
  • American-Arab Anti-Discrimination Committee v. Thornburgh
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 20, 1992
    ...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 substantia......
  • Manwani v. US DEPT. OF JUSTICE, INS
    • United States
    • U.S. District Court — Western District of North Carolina
    • April 23, 1990
    ...consistent with the First Amendment, deny entry solely on account of the content of speech");9American-Arab Anti-Discrimination Committee v. Meese, 714 F.Supp. 1060, 1083-84 (C.D.Cal.1989) appeal filed No. 89-55358 ("ADC v. Meese") (several provisions of the INA that penalize aliens for exe......
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1 books & journal articles
    • United States
    • Michigan Law Review Vol. 118 No. 2, November 2019
    • November 1, 2019
    ...(arguing that noncitizens are protected by the First, Fifth, and Fourteenth Amendments); Am.-Arab Anti-Discrimination Comm. v. Meese, 714 F. Supp. 1060, 1081 (C.D. Cal. 1989) ("[I]t is impossible to adopt for aliens a lower degree of First Amendment protection solely in the deportation sett......

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