American-Arab Anti-Discrimination Committee v. Reno, No. CV 87-2107-SVW(Kx).

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
• Writing for the Court: WILSON
• Citation: 883 F. Supp. 1365
• Parties: AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE, et al., Plaintiffs, v. Janet RENO, in her capacity as Attorney General of the United States, et al., Defendants.
• Docket Number: No. CV 87-2107-SVW(Kx).
• Decision Date: 24 January 1995

883 F. Supp. 1365

AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE, et al., Plaintiffs,
v.
Janet RENO, in her capacity as Attorney General of the United States, et al., Defendants.

No. CV 87-2107-SVW(Kx).

United States District Court, C.D. California.

January 24, 1995.

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Paul L. Hoffman, Mark D. Rosenbaum, Carol A. Sobel, ACLU Foundation of Southern California, Los Angeles, CA, David Cole, Counsel, Center for Constitutional Rights, Georgetown University Law Center, Washington, DC, Dan Stormer, Nat. Lawyers Guild, Pasadena, CA, Marc Van Der Hout, Nat. Lawyers Guild, San Francisco, CA, Kate Martin, ACLU Foundation, Washington, DC, Peter Schey, Center for Human Rights Constitutional Law, Los Angeles, CA, for plaintiffs

Frank W. Hunger, Asst. Atty. Gen., George J. Phillips, Acting Deputy Asst. Atty. Gen., Nora Manella, U.S. Atty., Lee Weidman, Asst. U.S. Atty., Chief, Civ. Div., Michael C. Johnson, Asst. U.S. Atty., Los Angeles, CA, Robert L. Bombaugh, Director, Lauri Steven Filppu, Deputy Director, Michael P. Lindemann, James A. Hunolt, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, DC, for defendants.

MEMORANDUM OPINION AND ORDER

WILSON, District Judge.

I. Background

In June of 1987, plaintiffs Aiad Barakat and Naim Sharif applied for legalization under the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1255a ("IRCA"). Legalization under IRCA is a two-step process. First, the Attorney General grants temporary resident status to any alien who establishes: (1) that he has maintained a continuous, unlawful residence in the United States from a date prior to January 1, 1982; (2) that he is admissible as an immigrant; and (3) that he has not been convicted of a felony or more than two misdemeanors committed in the United States. 8 U.S.C. § 1255a(a). Second, the Attorney General grants permanent resident status to any alien granted temporary resident status who resides here continuously for eighteen months and meets certain literacy requirements. 8 U.S.C. § 1255a(b).

Although plaintiffs filed their applications in 1987, the Immigration and Naturalization Service ("INS") did not adjudicate those applications until March 1991. At the time plaintiffs applied for legalization, INS regulations required all issues of statutory eligibility for immigration benefits, including legalization, to be determined solely on the basis of information in the record disclosed to the applicant. 8 C.F.R. § 103.2(b)(3)(ii) (1990).

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On January 7, 1991, the INS amended the rules regarding confidential information. 56 Fed.Reg. 618-24 (Jan. 7, 1991). While the prior rule had allowed the INS to rely on undisclosed, classified information only for discretionary determinations such as exclusion and withholding of deportation, the new regulations additionally allow reliance on such information for nondiscretionary immigration benefits such as legalization. 8 C.F.R. § 103.2(b)(3)(ii), (iv) (1994) (as amended)

When the INS finally issued Notices of Intent to Deny to the plaintiffs, it relied in part on these new regulations. The Notices stated that the INS had classified information indicating that the plaintiffs are members of the Popular Front for the Liberation of Palestine ("PFLP"). The PFLP, the Notices went on to state, is an organization that advocates doctrines disapproved under 8 U.S.C. § 1182(a)(28)(F).¹ The Notices do not identify any evidence supporting the allegations regarding the plaintiffs' connection with the PFLP. Instead, they state that "classified information" supports these charges and that the INS will not disclose the information to the plaintiffs because "its protection from unauthorized disclosure is required in the interests of national security, as provided in 8 C.F.R. § 103.2(b)(3)(iv)." The Notices conclude by stating that unless the plaintiffs can disprove the INS's charges (the evidence of which remains confidential), the INS will deny their applications. If the applications are denied, Barakat and Sharif will be ineligible for temporary resident status — the first step in the legalization process. In addition, they will lose their right to work in this country. See Defendants' First Response to the Discovery Order of January 7, 1994, Relating to Legalization at 1-2. The next step in the application process will be for the INS to hold a hearing giving Barakat and Sharif an opportunity to rebut the Government's allegations of PFLP membership. The Government contends that it does not need to reveal the classified information to the plaintiffs at that hearing.

Barakat and Sharif have moved for a permanent injunction enjoining the INS from using confidential information in adjudicating their IRCA applications. Plaintiffs present five arguments regarding the INS's use of undisclosed, classified information. First, they argue that 8 C.F.R. § 103.2 should not be applied retroactively because it would cause manifest injustice and alter plaintiffs' substantive rights. Second, they maintain that defendants' use of classified information denies them due process because it deprives plaintiffs of a meaningful opportunity to confront the Government's evidence.² Third,

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they maintain that such use violates the First Amendment, which they state requires heightened procedural safeguards where government officials review speech and associational activities. Fourth, they argue that the INS waived its right to invoke 8 U.S.C. § 1182(a)(28)(F)(iii) when it represented to the Ninth Circuit that it would not enforce a similar provision against these plaintiffs. Finally, they make a constitutional attack on § 1182(a)(28)(F), arguing that it violates the First Amendment on its face because it penalizes constitutionally protected associations

II. Justiciability

The Court has previously determined that it has jurisdiction over the due process claim. See Order filed August 13, 1993. In the interim an important Ninth Circuit case has been decided. Naranjo-Aguilera v. INS, 30 F.3d 1106 (9th Cir.1994). The Naranjo-Aguilera decision clarifies the United States Supreme Court decisions on District Court jurisdiction over claims under IRCA.

Two clear propositions emerge from Reno v. Catholic Social Servs., Inc., ___ U.S. ___, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) ("CSS") and McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991). First, district courts have jurisdiction over "collateral," "procedural" challenges to INS practices in the processing of applications, such as the front-desking in CSS or the denial of interpreters in McNary. In such cases, IRCA's limited review scheme would be incapable of generating an administrative record adequate for effective judicial review....

Second, however, the "neat dovetailing" of ripeness doctrine and IRCA's exclusive review provisions, see CSS, ___ U.S. at ___ 113 S.Ct. at 2497, forecloses aliens from challenging INS regulations or policies interpreting IRCA's substantive eligibility criteria, except on appeal from an order of deportation.

Id. at 1112-13.

Naranjo-Aguilera, McNary, and CSS therefore support the Court's holding in the August 13, 1993 Order. Plaintiffs raising purely legal claims must appeal the INS denial through the channels provided in IRCA; plaintiffs raising procedural claims requiring extensive fact-finding and record developing may raise their claims in federal District Court.

In the case at hand, plaintiffs raise both types of claims. The retroactivity argument, the judicial estoppel argument and the facial attack on 8 U.S.C. § 1182(a)(28)(F) are purely legal claims. According to the Supreme Court's analysis in CSS, then, these claims are not yet ripe for review. If the INS denies the plaintiffs' applications, the claims will become ripe and the IRCA review provisions will come into effect. Plaintiffs may obtain review at the appellate level.

In contrast, plaintiffs' procedural due process and First Amendment claims are ripe for review. Like the "`17 unsuccessful individual SAW applicants' in McNary," CSS, ___ U.S. at ___, 113 S.Ct. at 2497, the plaintiffs in the case at hand will not be able to obtain meaningful review of their procedural claims because the appellate court will not have the fact-finding capabilities necessary to evaluate such claims.

Plaintiffs urge the Court to reconsider its ruling that it does not have jurisdiction over the retroactivity issue. The Court has thoroughly considered the issue, and has determined that the retroactivity question can be addressed by the Court of Appeals, if necessary, without the aid of District Court fact-finding. It is true that the "manifest injustice" standard, Chenault v. United States Postal Service, 37 F.3d 535 (9th Cir. 1994) requires examination on a case-by-case basis of the nature of the rights and parties affected by a change in law, and the general equities of applying the changed law to the

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particular case at hand. Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); Delta Computer v. Samsung Semiconductor, 879 F.2d 662, 63-64 (9th Cir.1989). Nevertheless, the Court does not believe that detailed fact-finding would be necessary to evaluate the nature of the rights and parties affected, nor the general equities at issue here. Plaintiffs suggest that it would be fruitful to depose people at the INS to determine why the INS waited so long to address plaintiffs' legalization actions. The Court agrees that development of those facts might be slightly relevant to the retroactivity question. But the fact that discovery would be helpful on one small issue is not enough to change the overall nature of the retroactivity analysis. As a whole, the retroactivity question is one of law, and it can be handled by the Court of Appeal. The Court holds that CS...