Reno v Amer.-Arab Anti-Discrim. Comm.

• Decision Date: 24 February 1999
• Docket Number: 971252
• Citation: 142 L.Ed.2d 940,119 S.Ct. 936,525 U.S. 471
• Parties: (97-1252) 119 F.3d 1367, vacated and remanded. SUPREME COURT OF THE UNITED STATES 119 S.Ct. 936 142 L.Ed.2d 9401252 JANET RENO, ATTORNEY GENERAL, et al., PETITIONERS v.COMMITTEE et al. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [
• Court: U.S. Supreme Court

525 U.S. 471

119 S.Ct. 936

142 L.Ed.2d 940

(97-1252)

119 F.3d 1367, vacated and remanded

SUPREME COURT OF THE UNITED STATES

No. 97 1252

JANET RENO, ATTORNEY GENERAL, et al., PETITIONERS v AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[February 24, 1999]

Justice Scalia delivered the opinion of the Court.*

Respondents sued petitioners for allegedly targeting them for deportation because of their affiliation with a politically unpopular group. While their suit was pending, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009 546 (IIRIRA), which contains a provision restricting judicial review of the Attorney General's "decision or action" to "commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act." 8 U.S.C. § 1252(g) (1994 ed., Supp. III). The issue before us is whether, as petitioners contend, this provision deprives the federal courts of jurisdiction over respondents' suit.

I

The Immigration and Naturalization Service (INS), a division of the Department of Justice, instituted deportation proceedings in 1987 against Bashar Amer, Aiad Barakat, Julie Mungai, Amjad Obeid, Ayman Obeid, Naim Sharif, Khader Hamide, and Michel Shehadeh, all of whom belong to the Popular Front for the Liberation of Palestine (PFLP), a group that the Government characterizes as an international terrorist and communist organization. The INS charged all eight under the McCarran-Walter Act, which, though now repealed, provided at the time for the deportation of aliens who "advocate world communism." See 8 U.S.C. § 1251(a)(6)(D), (G)(v), and (H) (1982 ed.). In addition, the INS charged the first six, who were only temporary residents, with routine status violations such as overstaying a visa and failure to maintain student status.1 See 8 U.S.C. § 1251(a)(2) and (a)(9) (1988 ed.).

Almost immediately, the aliens filed suit in District Court, challenging the constitutionality of the anti-communism provisions of the McCarran-Walter Act and seeking declaratory and injunctive relief against the Attorney General, the INS, and various immigration officials in their personal and official capacities. The INS responded by dropping the advocacy-of-communism charges, but it retained the technical violation charges against the six temporary residents and charged Hamide and Shehadeh, who were permanent residents, under a different section of the McCarran-Walter Act, which authorized the deportation of aliens who were members of an organization advocating "the duty, necessity, or propriety of the unlawful assaulting or killing of any [government] officer or officers" and "the unlawful damage, injury, or destruction of property." See 8 U.S.C. § 1251(a)(6)(F)(ii) (iii) (1982 ed.).2 INS regional counsel William Odencrantz said at a press conference that the charges had been changed for tactical reasons but the INS was still seeking respondents' deportation because of their affiliation with the PFLP. See American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1053 (CA9 1995). Respondents amended their complaint to include an allegation that the INS was selectively enforcing immigration laws against them in violation of their First and Fifth Amendment rights.3

Since this suit seeking to prevent the initiation of deportation proceedings was filed in 1987, during the administration of Attorney General Edwin Meese it has made four trips through the District Court for the Central District of California and the United States Court of Appeals for the Ninth Circuit. The first two concerned jurisdictional issues not now before us. See Hamide v. United States District Court, No. 87 7249 (CA9, Feb. 24, 1988); American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F.2d 501 (CA9 1991). Then, in 1994, the District Court preliminarily enjoined deportation proceedings against the six temporary residents, holding that they were likely to prove that the INS did not enforce routine status requirements against immigrants who were not members of disfavored terrorist groups and that the possibility of deportation, combined with the chill to their First Amendment rights while the proceedings were pending, constituted irreparable injury. With regard to Hamide and Shehadeh's claims, however, the District Court granted summary judgment to the federal parties for reasons not pertinent here.

American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045 (CA9 1995), a case that we shall call "AADC I" was the Ninth Circuit's first merits determination in this case, upholding the injunction as to the six and reversing the District Court with regard to Hamide and Shehadeh. The opinion rejected the Attorney General's argument that selective-enforcement claims are inappropriate in the immigration context, and her alternative argument that the special statutory-review provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1105a precluded review of such a claim until a deportation order issued. See 70 F.3d, at 1056 1057. The Ninth Circuit remanded the case to the District Court, which entered an injunction in favor of Hamide and Shehadeh and denied the Attorney General's request that the existing injunction be dissolved in light of new evidence that all respondents participated in fundraising activities of the PFLP.

While the Attorney General's appeal of this last decision was pending, Congress passed IIRIRA which, inter alia, repealed the old judicial-review scheme set forth in §1105a and instituted a new (and significantly more restrictive) one in 8 U.S.C. §1252. The Attorney General filed motions in both the District Court and Court of Appeals, arguing that §1252(g) deprived them of jurisdiction over respondents' selective-enforcement claim. The District Court denied the motion, and the Attorney General's appeal from that denial was consolidated with the appeal already pending in the Ninth Circuit.

It is the judgment and opinion in that appeal which is before us here: American-Arab Anti-Discrimination Committee v. Reno, 119 F.3d 1367 (CA9 1997), which we shall call "AADC II." It affirmed the existence of jurisdiction under §1252, see id., at 1374, and reaching the merits of the injunctions, again affirmed the District Court, id., at 1374 1376. The Attorney General's petition for rehearing en banc was denied over the dissent of three judges, 132 F.3d 531 (CA9 1997). The Attorney General sought our review, and we granted certiorari, 524 U.S. ___ (1998).

II

Before enactment of IIRIRA, judicial review of most administrative action under the INA was governed by 8 U.S.C. § 1105a a special statutory-review provision directing that "the sole and exclusive procedure for the judicial review of all final orders of deportation" shall be that set forth in the Hobbs Act, 28 U.S.C. § 2341 et seq., which gives exclusive jurisdiction to the courts of appeals, see §2342. Much of the Court of Appeals' analysis in AADC I was devoted to the question whether this pre-IIRIRA provision applied to selective-enforcement claims. Since neither the Immigration Judge nor the Board of Immigration Appeals has authority to hear such claims (a point conceded by the Attorney General in AADC I, see 70 F.3d, at 1055), a challenge to a final order of deportation based upon such a claim would arrive in the court of appeals without the factual development necessary for decision. The Attorney General argued unsuccessfully below that the Hobbs Act permits a court of appeals to remand the case to the agency, see 28 U.S.C. § 2347(c) or transfer it to a district court, see §2347(b)(3) for further factfinding. The Ninth Circuit, believing these options unavailable, concluded that an original district-court action was respondents' only means of obtaining factual development and thus judicial review of their selective-enforcement claims. Relying on our decision in Cheng Fan Kwok v. INS, 392 U.S. 206 (1968), it held that the District Court could entertain the suit under either its general federal-question jurisdiction, see 28 U.S.C. § 1331 or the general jurisdictional provision of the INA, see 8 U.S.C. § 1329.4

Whether we must delve further into the details of this issue depends upon whether, after the enactment of IIRIRA, §1105a continues to apply to this case. On the surface of things, at least, it does not. Although the general rule set forth in §309(c)(1) of IIRIRA is that the revised procedures for removing aliens, including the judicial-review procedures of §1252, do not apply to aliens who were already in either exclusion or deportation proceedings on IIRIRA's effective date, see note following 8 U.S.C. § 1101 (1994 ed., Supp. III),5 §306(c)(1) of IIRIRA directs that a single provision, §1252(g), shall apply "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings." See note following 8 U.S.C. § 1252 (1994 ed., Supp. III). Section 1252(g) reads as follows:

"(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 Act."

This provision seemingly governs here, depriving the federal courts of jurisdiction "[e]xcept as provided in this section." But whether it is as straightforward as that depends upon the scope of the quoted text. Here, and in the courts below, both petitioners and respondents have treated §1252(g) as covering all or nearly all deportation claims. The Attorney General has characterized it as "a channeling provision, requiring aliens to bring all deportation-related claims in the context of a petition for review of a final...