April 1999     

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At dawn on January 16, 1987, Michel Shehadeh, asleep in his Long Beach apartment with his three-year-old son by his side, was roused by a persistent knock. When he cracked open the door, 13 Immigration and Naturalization Service agents burst in with guns drawn, yelling, "where are the weapons?"

That day, the INS conducted other raids around the Los Angeles area, even yanking a college student out of his exam. They arrested seven Palestinians (with Jordanian passports) and one Kenyan for being deportable because they belonged to an organization that advocates the "doctrines of world communism," the Popular Front for the Liberation of Palestine (PFLP). Six were also charged with technical violations of their visas.

Kept in a maximum security prison for 23 days, the detainees soon joined the pantheon of notable groups such as the Chicago Seven and the Slaughterhouse Five, receiving the numerical nom de presse of "the Los Angeles Eight." On February 24 of this year, the United States Supreme Court abruptly ended their 12-year legal struggle with a surprise ruling that the First Amendment does not protect immigrants from deportation for political views and associations.

The substance of the ruling was somewhat surprising (even though it was written, unsurprisingly, by that arch-enemy of individual rights, Antonin Scalia). The big surprise was that the opinion reached the substance of the aliens’ First Amendment claim, even though the court had granted certiorari only to decide whether the courts below had jurisdiction to hear the claim. In a press release, David Cole, a professor at Georgetown University Law Center and attorney with the Center for Constitutional Rights, who argued the case for the immigrants, said, "we are not only disappointed; we were blindsided. The Court has denied to all immigrants in this country the right to engage in the same political activities that citizens have an unquestioned First Amendment right to engage in. And it did so after telling us not to address the question. The Court has denied immigrants the right to speak without even allowing them to be heard on that question."

Scalia reasoned that not only did the 1996 immigration statute amendments strip the district court of jurisdiction to hear the aliens’ claims, but, because the aliens were for various reasons "illegal aliens," the First Amendment provided no defense to their deportation, even though the INS targeted them because of their political views and associations. Scalia was joined on the First Amendment issue by Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Anthony Kennedy, and Clarence Thomas. Justice John Paul Stevens agreed on the First Amendment issue in a separate concurrence, but sided with Ruth Bader Ginsburg, Stephen Breyer, and David Souter in reading the baffling immigration law amendments to allow jurisdiction.

"It relegates immigrants to second-class citizens, and it’s reminiscent of the political witch hunts of the McCarthy era," said co-counsel for the immigrants, Marc Van Der Hout, of the National Lawyers Guild. Other co-counsel were from the Los Angeles law firm of Sonnenschein, Nath & Rosenthal.

Aliens Allegedly Had Magazines

This ruling shows that the Supreme Court is once again unwilling to look behind technically legal law enforcement actions to examine the motives of policemen, prosecutors, and other guardians of the American way of life. Recall the Scalia-authored 1995 ruling, Whren v. United States, which held that police can pull over motorists who make simple driving mistakes such as failing to signal a lane change, and that the Court need not inquire why nearly everyone who gets pulled over for such an infraction is black. It is now the law of the land that the INS can deport people for technical violations of their visa, and it is fine by the court if the only people so deported are the ones caught reading the wrong magazines. The blatantly political and anti-expressive tactics of the FBI and the INS were well documented, largely admitted, and remain uncontroverted in the factual findings of the district court.

The PFLP, a Marxist faction of the Palestine Liberation Organization, is known as one of the more hard line and violent Palestinian organizations. The government’s brief to the Supreme Court recites the evils perpetrated by the PFLP:

From its founding in 1967, the PFLP has proclaimed the United States to be one of its principal enemies, along with the State of Israel and the governments of various moderate Arab States. Among its many acts of international terrorism, the PFLP hijacked five aircraft in one weekend in 1970, killed 16 United States citizens at Israel’s Lod Airport in 1972, assassinated the United States Ambassador to Lebanon in 1976, and conducted a campaign of attacks against moderate Palestinian officials during the mid-1980s, including assassinations. The organization strenuously opposed the United States in the Gulf War with Iraq. In 1991, on the eve of a comprehensive peace conference in Madrid between Israel and neighboring Arab countries, the PFLP machine-gunned a West Bank passenger bus, injuring five children and killing their mother and the bus driver. The PFLP remains one of the rejectionist terrorist groups violently opposed to the peace process sponsored by the United States in the Middle East.

In defense of the Los Angeles Eight, it is worth noting that the Damascus-based group also sponsors humanitarian programs for Palestinians, including day care centers, hospitals, and schools. It provides health insurance to its members and their families, publishes political magazines and newspapers, and maintains diplomatic offices in many countries. But more importantly, the aliens have denied being members of PFLP and have not been charged with any illegal activity, much less terrorism. At his confirmation hearings in April and May 1987, former FBI director William Webster told Congress that the aliens "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 . . . [I]n this particular case if these individuals had been United States citizens, there would not have been a basis for their arrest."

Although the INS commandos yelled "where are the weapons?," there were no weapons. But there were magazines. The charges under the McCarthy-era Immigration and Nationality Act (McCarran-Walter Act or McCarran Act) were the result of a three-year FBI investigation, in which agents taped political speeches, photographed demonstrations, and attended political meetings. PFLP views were found to be "anti-US, anti-Israel, anti-Jordan," and (horrors) "anti-REAGAN and anti-MABARAK [sic]." Contemporaneous FBI memoranda includes over 300 pages in which agents carefully tracked the distribution of PFLP publications (available in public libraries across the country) to see how many were shipped and who got them. Agents even weighed boxes of magazines to estimate how many magazines were inside, and trailed whoever picked them up. An FBI memorandum urged the INS to deport Khader Musa Hamide because he is "intelligent, aggressive, dedicated, and shows great leadership ability."

In granting an injunction barring deportation, the district court found that the INS was not trying to deport similarly situated aliens, including individuals with the same technical visa violations and alliances with similar political groups, such as the Nicaraguan Contras, Afghanistan Mujahedin, Mozambique RENAMO, anti-Castro Cuban groups, and the Vietnamese Montagnards.

Winding Road to the Supreme Court

The procedural posture of this case is a twisted, 12-year hejira. In April 1987, the Los Angeles Eight filed suit alleging that the provision of the McCarran Act allowing their deportation for affiliation with an organization that advocates the "doctrines of world communism" was unconstitutional. Joining as plaintiffs were the ADC, other Arab-American groups, the Irish National Caucus, and the American Friends Committee.

Just four days before the court was to hear the plaintiff’s motion for a preliminary injunction, the INS dropped the McCarran Act charges against the six aliens who were not permanent residents. (The McCarran Act was repealed in 1990.) The INS still sought deportation of the six aliens for visa violations that were the immigration equivalent of a broken taillight. Hamide and Shehadeh, permanent residents, were charged with belonging to an organization that advocates unlawful destruction of property and unlawful assault of government officers. INS regional counsel William Odencrantz candidly told the press that this was just a tactical move, and that the INS really intended to deport all eight plaintiffs because they were members of the PFLP. (With the INS being so forthcoming about its evil designs, the Supreme Court probably had no choice but to put the First Amendment in the dryer on high.)

In 1989, after some litigation over ripeness and jurisdiction, the district court ruled that the McCarran Act was constitutionally overbroad, in violation of the aliens’ First Amendment rights, which were the same as if they were citizens. The court issued a declaratory judgment regarding the "Other Six," as the court called them, even though they were not then charged. Hamide and Shehadeh had not exhausted their administrative remedies, so the court denied them standing. Among the organizations, only ADC had standing. In 1992, the Ninth Circuit Court of Appeals reversed in part, holding that the First Amendment claim was not ripe and that ADC did not have standing. In the meantime, the McCarran Act was repealed, and, in 1991, Hamide and Shehadeh were re-charged with being deportable for "terrorist activity" under the new deportability provisions, added by Congress in 1990.

The Los Angeles Eight sued again, alleging selective enforcement, leading to a 1994 injunction barring deportation of the six. Two of the eight obtained yet another injunction in 1995 barring the INS from deporting them based on secret information, because this would have been a violation of due process.

At this point, Congress really messed things up. Federal immigration law was amended in 1996 by the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). These baffling rewrites are a tangle of sweeping "notwithstanding" clauses, exceptions, and cross-references written on construction paper with a stubby crayon. Amendments enacted by IIRIRA in some cases amend, repeal, contradict or simply garble the amendments made by AEDPA. Among the "reforms" attempted were streamlinings to federal habeas corpus (thus supposedly making the death penalty more effective) and sweeping limitations on judicial review of the removal of aliens. When the Ninth Circuit Court of Appeals in 1997 decided that IIRIRA did not divest the district court of jurisdiction to enjoin the INS’s selective enforcement, the Supreme Court was displeased and granted certiorari to interpret Congress’s doodling—or so they said.

Constitutional Doubt Begone

The details of Scalia’s statutory interpretation are of interest only to cryptographers. Suffice it to say that Scalia does remarkably well, considering the fact that he is constrained by canons of statutory construction from declaring that Congress did not know what the hell it was doing. His conclusion was that IIRIRA applied to the pending proceeding, and he denied the district court jurisdiction to hear a claim for injunctive relief from INS deportation proceedings.

Scalia’s further holding is a lesson in being careful for what you pray for. In their brief, the Los Angeles Eight appealed to the principle of "constitutional doubt" and urged the court to "interpret the statutory scheme to avoid ‘serious constitutional questions’ by preserving meaningful and timely judicial review of a constitutional claim." Scalia took them up on this and gave them timely review of their constitutional claim right then and there. No more constitutional doubt. Aliens can be deported for activities that would be constitutionally protected if carried out by citizens, as long as the INS can find a "broken taillight" problem with their visas.

"Antagonizing" Foreign Nationals Is Now Okay

Scalia’s reasoning sounds much like what Congress would have said when enacting IIRIRA, had it bothered to issue a report. "Whereas in criminal proceedings the consequence of delay is merely to postpone the criminal’s receipt of his just desserts, in deportation proceedings the consequence is to permit and prolong a continuing violation of United States law." He bemoans how much trouble it would be for the INS if they had to withstand judicial scrutiny when deporting thought criminals. Judicial review of deportation involves "not merely the disclosure of normal domestic law-enforcement priorities and techniques, but often the disclosure of foreign-policy objectives and (as in this case) foreign-intelligence products and techniques." Like the police pulling over African-Americans in Whren, "[t]he Executive should not have to disclose its ‘real’ reasons for deeming nationals of a particular country a special threat—or indeed for simply wishing to antagonize a particular foreign country by focusing on that country’s nationals."

"Our nation of immigrants is now being forced into political silence," said attorney Van Der Hout, "chilled from speaking out about injustices in their homeland and this country."

References

American-Arab Anti-Discrimination Comm. v. Reno, 119 F.3d 1367 (9th Cir. 1997).

American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045 (9th Cir. 1995) (holding that district court had jurisdiction to adjudicate selective enforcement claim, and did not abuse its discretion to grant injunction against selective enforcement of immigration laws).

Immigration and Nationality Act, 8 U.S.C. §§ 1251(a)(6)(D), (F)(ii), (F)(iii) (1988) (repealed 1990).

Immigration Act of 1990, 8 U.S.C. § 1227(a)(4)(B) (Supp. III 1997).

Reno v. American-Arab Anti-Discrimination Comm., 118 S.Ct. 2059 (1998) (granting certiorari for limited question of district court jurisdiction).

Reno v. American-Arab Anti-Discrimination Comm., 119 S.Ct. 936 (1999) (holding that district court had no jurisdiction, and that immigrants could make no selective enforcement claim).

Whren v. United States, 517 U.S. 806 (1996).

Petitioner’s Brief, Reno v. American-Arab Anti-Discrimination Comm., 118 S.Ct. 2059 (1998) (No. 97-1252).

Respondent’s Brief, Reno v. American-Arab Anti-Discrimination Comm., 118 S.Ct. 2059 (1998) (No. 97-1252).