American-Arab Anti-Discrimination Committee v. Reno
| Citation | 119 F.3d 1367 |
| Decision Date | 10 July 1997 |
| Docket Number | AMERICAN-ARAB,Nos. 96-55929,97-55479,ANTI-DISCRIMINATION,s. 96-55929 |
| Parties | , 97 Cal. Daily Op. Serv. 5488, 97 Daily Journal D.A.R. 8918 COMMITTEE, et al., Plaintiffs, and Aiad Barakat; Naim Sharif; Khader Musa Hamide; Nuangugi Julie Mungai; Ayman Mustafa Obeid; Amjad Obeid; Michel Ibrahim Shehadeh; Bashar Amer, Plaintiffs-Appellees, v. Janet RENO, Attorney General; Harold Ezell; C.M. McCullough; Doris Meissner, Commissioner, INS; Ernest E. Gustafson, Personally and in his capacity as past District Director of the Immigration and Naturalization Service; Richard K. Rogers, District Director, Personally and in his capacity as District Director of the Immigration and Naturalization Service; Gilbert Reeves, Personally and in his capacity as an Officer of the Immigration and Naturalization Service; Immigration and Naturalization Service, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Douglas Letter, United States Department of Justice, Washington DC, for Defendants-Appellants.
David Cole, Center for Constitutional Rights, Georgetown University Law Center, Washington, DC, Marc Van Der Hout, National Lawyers Guild, Van Der Hout & Brigagliano, San Francisco, CA, for Plaintiffs-Appellees.
J. Joshua Wheeler, The Thomas Jefferson Center for the Protection of Free Expression, Charlottesville, VA, for Amici Curiae.
Appeals from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding. D.C. No. CV-87-02107-SVW.
Before: D.W. NELSON and CANBY, Circuit Judges, and TANNER, District 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.
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 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 case 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 " " 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.
Obeid, 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
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) (). 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. American-Arab 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 American-Arab I, the government argues that the deportation proceedings were initiated for permissible reasons. Specifically, the government cites to materials detailing In addition, while this appeal was pending, the government filed motions to dismiss the case 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.
the Plaintiffs' support of PFLP fundraising activities and argues that under the applicable First Amendment standard, the Plaintiffs may be sanctioned for this behavior.
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). A district court abuses its discretion "if the court bases its decision on an erroneous legal conclusion or on clearly erroneous findings of fact." American-Arab I, 70 F.3d at 1062.
IIRIRA amends section 242(g) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252(g), to provide:
(g) Exclusive jurisdiction
Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
Pub.L. No. 104-208, § 306(a). The government argues that subsection (g) applies retroactively and eliminates federal jurisdiction over this case at this stage in the proceedings. While we agree that subsection (g) applies, we hold that it does not deprive the court of jurisdiction in this case.
IIRIRA explicitly provides for the retroactive application of subsection (g). 2 Section 306(c) states that
the amendments made by subsections (a) and (b) shall apply to all final orders of deportation or removal and motions to reopen filed on or after the date of the enactment of this Act and subsection (g) of section 242 of the Immigration and Nationality Act () [8 U.S.C. § 1252(g) ], shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under such Act.
Pub.L. No. 104-208, § 306(c) (emphasis added). Thus, the provision...
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