American-Arab Anti-Discrimination Committee v. Reno, AMERICAN-ARAB

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore D.W. NELSON, CANBY, Circuit Judges, and TANNER; D.W. NELSON
Parties95 Cal. Daily Op. Serv. 8608, 95 Daily Journal D.A.R. 14,893 COMMITTEE; Arab American Democratic Federation; Association of American University Graduates; Irish National Caucus; Palestine Human Rights Campaign; League of United Latin American Citizens; Michael Bogopolsky; Darrel Meyers; Southern California Inter-Faith Task Force on Central America; Aiad Khaled Barakat; Khader Musa Hamide; Nuangugi Julie Mungai; Amjad Mustafa Obeid; Ayman Mustafa Obeid; Naim Nadim Sharif; Michael Ibrahim Shehadeh; Bashar Amer; American Association of University Professors; Fund for Free Expression; American Friends Service Committee, Plaintiffs-Appellants, v. Janet RENO, in her capacity as Attorney General of The United States of America, et al.; Ernest E. Gustafson, District Director; Immigration & Naturalization Service, Defendants-Appellees.COMMITTEE; Arab American Democratic Federation; Association of American University Graduates; Irish National Caucus, et al., Plaintiffs-Appellees, v. Janet RENO; Doris Meissner; Harold Ezell; C.M. McCullough, et al., Defendants-Appellants.COMMITTEE; Arab American Democratic Federation; Association of American University Graduates; Irish National Caucus; Aiad Barakat; Naim Sharif, et al., Plaintiffs-Appellees, v. Janet RENO; Doris Meissner; Harold Ezell; Gustavo De la Vina; Ernest E. Gustafson; Richard K. Rogers, District Director; Immigration & Naturalization Service, Defendants-Appellants.
Decision Date08 November 1995
Docket NumberNos. 94-55405,AMERICAN-ARAB,94-55444 and 95-55177,ANTI-DISCRIMINATION

Page 1045

70 F.3d 1045
95 Cal. Daily Op. Serv. 8608, 95 Daily Journal
D.A.R. 14,893
AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE; Arab American
Democratic Federation; Association of American University
Graduates; Irish National Caucus; Palestine Human Rights
Campaign; League of United Latin American Citizens;
Michael Bogopolsky; Darrel Meyers; Southern California
Inter-Faith Task Force on Central America; Aiad Khaled
Barakat; Khader Musa Hamide; Nuangugi Julie Mungai; Amjad
Mustafa Obeid; Ayman Mustafa Obeid; Naim Nadim Sharif;
Michael Ibrahim Shehadeh; Bashar Amer; American
Association of University Professors; Fund for Free
Expression; American Friends Service Committee, Plaintiffs-Appellants,
v.
Janet RENO, in her capacity as Attorney General of The
United States of America, et al.; Ernest E.
Gustafson, District Director;
Immigration & Naturalization
Service,
Defendants-Appellees.
AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE; Arab American
Democratic Federation; Association of American
University Graduates; Irish National
Caucus, et al., Plaintiffs-Appellees,
v.
Janet RENO; Doris Meissner; Harold Ezell; C.M.
McCullough, et al., Defendants-Appellants.
AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE; Arab American
Democratic Federation; Association of American University
Graduates; Irish National Caucus; Aiad Barakat; Naim
Sharif, et al., Plaintiffs-Appellees,
v.
Janet RENO; Doris Meissner; Harold Ezell; Gustavo De la
Vina; Ernest E. Gustafson; Richard K. Rogers,
District Director; Immigration &
Naturalization Service,
Defendants-Appellants.
Nos. 94-55405, 94-55444 and 95-55177.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 7, 1995.
Decided Nov. 8, 1995.

Page 1051

Marc Van Der Hout, National Lawyers Guild, San Francisco, California; Dan Stormer, Hadsell & Stormer, Pasadena, California; David Cole, Ctr. for Constitutional Rights, Georgetown University Law Center, argued, Washington, D.C.; Paul L. Hoffman, Mark D. Rosenbaum, Carol Sobel, A.C.L.U. Foundation of Southern California, Los Angeles, California; John Scanlan, Indiana University School of Law, Bloomington, Indiana, for plaintiffs-appellants in No. 94-55405.

Douglas Letter and Steven R. Valentine, United States Department of Justice, Washington, D.C.; Michael P. Linderman and Linda S. Wendtland, Office of Immigration Litigation, Washington, D.C.; Michael C. Johnson, Assistant United States Attorney, Los Angeles, California, for defendants-appellees in No. 94-55405.

Douglas Letter, United States Department of Justice, Washington, D.C.; Michael P. Linderman, Office of Immigration Litigation, Washington, D.C.; Michael C. Johnson, Assistant United States Attorney, Los Angeles, California, for defendants-appellants in No. 94-55444.

Paul L. Hoffman, Mark D. Rosenbaum, Carol Sobel, A.C.L.U. Foundation of Southern California, Los Angeles, California; Marc Van Der Hout, National Lawyers Guild, San Francisco, California; David Cole, Ctr. for Constitutional Rights, Georgetown University Law Center, argued, Washington, D.C., for plaintiffs-appellees in No. 94-55444.

Michael S. Raab and Douglas Letter, United States Department of Justice, Washington,

Page 1052

D.C.; Michael C. Johnson, Assistant United States Attorney, Los Angeles, California; Michael P. Linderman, Office of Immigration Litigation, Washington, D.C., for defendants-appellants in No. 95-55177.

Paul L. Hoffman, Mark D. Rosenbaum, Carol Sobel, A.C.L.U. Foundation of Southern California, Los Angeles, California; Marc Van Der Hout, National Lawyers Guild, San Francisco, California; David Cole, Ctr. for Constitutional Rights, Georgetown University Law Center, argued, Washington, D.C., for plaintiffs-appellees in No. 95-55177.

Appeals from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding.

Before D.W. NELSON, CANBY, Circuit Judges, and TANNER, District Judge *.

D.W. NELSON, Circuit Judge:

This opinion decides three cases that have been consolidated on appeal. Two of the cases involve claims of selective enforcement 1 of immigration laws in violation of the aliens' First Amendment rights, arising from the initiation of deportation proceedings under various provisions of the Immigration and Nationality Act ("the INA"), codified as amended at 8 U.S.C. Sec. 1101 et seq. (1994), against Aiad Khaled Barakat, Naim Nadim Sharif, Bashar Amer, Ayman Mustafa Obeid, Julie Nuangugi Mungai, and Amjad Mustafa Obeid (No. 94-55444, collectively referenced as "the Six"); and Khader Musa Hamide and Michael Ibrahim Shehadeh (No. 94-55405, collectively referenced as "Hamide and Shehadeh"). In No. 94-55444, the Attorney General and the Immigration and Naturalization Service appeal the grant of a preliminary injunction against further deportation proceedings for the Six. In No. 94-55405, Hamide and Shehadeh appeal the district court's denial of a similar preliminary injunction based on lack of subject matter jurisdiction. In the third case, No. 95-55177, the INS appeals the district court's finding of a due process violation and its grant of a permanent injunction prohibiting the INS' use of undisclosed classified information against Barakat and Sharif in adjustment-of-status legalization proceedings pursuant to section 245a of the Immigration Reform and Control Act of 1986 ("the IRCA"), Pub.L. 99-603, 100 Stat. 3394 (Nov. 6, 1986), codified as amended at 8 U.S.C. Sec. 1255a (1994). We have jurisdiction to review orders granting or denying a preliminary injunction under 28 U.S.C. Sec. 1292(a)(1) (1988) and jurisdiction to review the district court's final order granting a permanent injunction under 28 U.S.C. Sec. 1291 (1988). We affirm the grant of a preliminary injunction against the INS in the proceedings to deport the Six, we affirm the grant of a permanent injunction against the INS preventing the use of undisclosed classified information against Barakat and Sharif in their legalization proceeding, and we vacate the district court's decision that it lacked jurisdiction to consider the selective enforcement claim of Hamide and Shehadeh and remand for the district court to address that claim on the merits.

FACTUAL AND PROCEDURAL BACKGROUND

After initiating deportation proceedings, the INS arrested the eight named aliens in this case in January 1987. They were detained for several weeks in maximum security prisons and then released pending the outcome of deportation proceedings. The INS charged all but Mungai under various provisions of the McCarran-Walter Act of 1952 ("the 1952 Act") 2 for membership in an

Page 1053

organization, the Popular Front for the Liberation of Palestine ("PFLP"), that allegedly advocates the doctrines of world communism. In addition, the Six were charged with non-ideological immigration violations under 8 U.S.C. Sec. 1251(a)(2) (1988) (overstaying a visa). Amer was also charged under 8 U.S.C. Sec. 1251(a)(9) (1988) (failing to maintain student status). Later, charges were added for both Ayman Obeid and Amjad Obeid for changing their nonimmigrant status by taking unauthorized employment. In February, 1987, Mungai was also charged under the McCarran-Walter Act, 8 U.S.C. Sec. 1251(a)(6)(D), (G), and (H).

In April 1987, the individual plaintiffs and several organizations initiated an action for damages, a declaration that the provisions of the 1952 Act under which the eight were charged are unconstitutional facially and as applied, and injunctive relief against the investigation, arrest, and deportation of aliens pursuant to the challenged provisions. On April 23, 1987, just four days before the district court's hearing on a motion for a preliminary injunction, the INS dropped the 8 U.S.C. Sec. 1251(a)(6) ideological charges against the Six, but it retained the non-ideological, technical violation charges. The INS also dropped the original charges against Hamide and Shehadeh; but on April 28, 1987, it brought new charges against them under 8 U.S.C. Sec. 1251(a)(6)(F)(iii), alleging that they were deportable as members of an organization that advocates or teaches the unlawful destruction of property. Later, the INS added a charge under 8 U.S.C. Sec. 1251(a)(6)(F)(ii), alleging that Hamide and Shehadeh were associated with a group that advocates the unlawful assaulting or killing of government officers.

In April and May of 1987, 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 ... in this particular case if 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). Also, at a press conference after the original charges were dropped against the Six, 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.

The district court issued orders on May 21, 1987 and June 3, 1987 holding that it had no jurisdiction over the 1952 Act claims of Hamide and Shehadeh on ripeness grounds. Hamide and Shehadeh unsuccessfully sought review of the statute by mandamus. Hamide v. United States District Court, No. 87-7249 (9th Cir. Feb. 24, 1988). When they again sought review in the district court, it 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 F.2d 501, 511 (9th Cir.1991). Ruling on the claims of the...

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101 practice notes
  • State v. Trump, No. 17-35105
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 9, 2017
    ...to justify legislative or executive action when constitutional rights are at stake." American–Arab Anti–Discrimination Comm. v. Reno , 70 F.3d 1045, 1056 (9th Cir. 1995).Kleindienst v. Mandel , 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), does not compel a different conclusion. The G......
  • In re Nat'l Sec. Letter, No. C 11–02173 SI.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 14, 2013
    ...NSL request or nondisclosure order. Petitioner relies on the Ninth Circuit's decision in American–Arab Anti–Discrimination Comm. v. Reno, 70 F.3d 1045 (9th Cir.1995), which held that use of undisclosed national security information in summary adjustment-of-status legalization proceedings vi......
  • Humanitarian Law Project v. Reno, No. CV 98-1971 ABC(BQRX).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • June 8, 1998
    ...In Re Asbestos School Litig., 46 F.3d 1284, 1294 (3rd Cir.1994) (cited favorably by American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1058 (9th Cir.1995) ("American-Arab I") (explaining that "[j]oining organizations that participate in public debate, making contributions to......
  • Encuentro del Canto Popular v. Christopher, No. C-93-4221-VRW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • April 22, 1996
    ...and bona fide reason" for his decision to deny visas to the excluded members. See American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1056 (9th Cir.1995) (recognizing that the political branches have "great discretion to determine which aliens to exclude from entering this co......
  • Request a trial to view additional results
101 cases
  • State v. Trump, No. 17-35105
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 9, 2017
    ...to justify legislative or executive action when constitutional rights are at stake." American–Arab Anti–Discrimination Comm. v. Reno , 70 F.3d 1045, 1056 (9th Cir. 1995).Kleindienst v. Mandel , 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), does not compel a different conclusion. The G......
  • In re Nat'l Sec. Letter, No. C 11–02173 SI.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 14, 2013
    ...NSL request or nondisclosure order. Petitioner relies on the Ninth Circuit's decision in American–Arab Anti–Discrimination Comm. v. Reno, 70 F.3d 1045 (9th Cir.1995), which held that use of undisclosed national security information in summary adjustment-of-status legalization proceedings vi......
  • Humanitarian Law Project v. Reno, No. CV 98-1971 ABC(BQRX).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • June 8, 1998
    ...In Re Asbestos School Litig., 46 F.3d 1284, 1294 (3rd Cir.1994) (cited favorably by American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1058 (9th Cir.1995) ("American-Arab I") (explaining that "[j]oining organizations that participate in public debate, making contributions to......
  • Encuentro del Canto Popular v. Christopher, No. C-93-4221-VRW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • April 22, 1996
    ...and bona fide reason" for his decision to deny visas to the excluded members. See American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1056 (9th Cir.1995) (recognizing that the political branches have "great discretion to determine which aliens to exclude from entering this co......
  • Request a trial to view additional results

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