Supreme Court Narrows Rights of Aliens
From: Civil Rights Monitor Vol. 10, No. 3 (Summer 1999)
On February 24, 1999, the Supreme Court ruled 5-4 that federal courts have no jurisdiction to hear a claim that the Immigration and Naturalization Service (INS) selectively instituted deportation procedures as a result of First Amendment activities by the deportees. Furthermore, the Court ruled 8-1 that an alien unlawfully in the United States has no constitutional right to assert selective enforcement as a defense against his or her deportation. This aspect of the Court's decision reached an issue on which neither party had briefed the Court, leaving co-counsel for the deportees to state that they were "blindsided" by the Court's action on the issue.
The question before the Court that the parties had addressed in their briefs was whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) had deprived the lower courts of jurisdiction to hear the respondents' challenge to a deportation proceeding prior to the entry of a final order of deportation.
Background
The case, Reno v. American Arab Anti-Discrimination Committee (No. 97-1252) involved eight non-citizens all of whom have political ties to the Popular Front for the Liberation of Palestine (PLFP), a group the U.S. Department of Justice describes as a terrorist and communist organization.
In 1987, the Immigration and Naturalization Service, began deportation procedures against the eight non-citizens with ties to the PFLP. The INS charged all eight individuals under the McCarran-Walter Act, which, though now repealed, provided at the time for the deportation of aliens who "advocate...world communism." Additionally, the INS charged six of the eight who were temporary residents with minor technical violations such as overstaying a visa and failure to maintain student status. The other two are lawful permanent residents (LPRs).
After the deportation procedures began, the eight filed suit in U.S. District Court contending that the provisions of the McCarran-Walter Act under which they were charged were unconstitutional. They further argued they had been unfairly investigated and targeted for potential immigration violations solely because of their membership in the politically controversial PFLP, even though their involvement with the organization consisted of legitimate fund-raising and free speech activities such as passing out literature. In filing their suit, the immigrants sought declaratory and injunctive relief against the Attorney General, the INS, and various immigration officials.
In response, the INS dropped the communism charges, but retained the technical (visa) violation charges against the six temporary residents and charged the two LPRs under a different section of the Immigration and Naturalization Act (INA), 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." The government has in fact acknowledged that none of the eight has engaged in any criminal or violent terrorist activity.
INS regional counsel claimed the charges were changed for tactical reasons but that deportation of all eight individuals would still be pursued as a result of their political affiliation with the PFLP. The respondents amended their complaint to include the allegation that the INS was selectively enforcing immigration laws against them in violation of their First and Fifth Amendment Rights. The group contended that the government targeted them based on their political beliefs and activities while thousands of others who committed the same technical immigration violations were left alone.
The U.S. District Court blocked the deportation of the six temporary residents, stating they should be able to make the case that they suffered discrimination because of their political affiliation, however the district court ruled in favor of the government as to the two LPRs. The Ninth Circuit upheld the district court's ruling in favor of the six temporary residents and reversed the district court's decision regarding the two LPRs.
While an appeal by the Attorney General of the Ninth Circuit's decision was pending, Congress passed the IIRIRA. The IIRIRA legislation made changes to the INA to speed up deportation procedures by eliminating many of the legal remedies previously afforded to noncitizens, stripped federal courts of their jurisdiction over many actions of the INS, and applied the changes in the law retroactively to immigrants residing in the U.S. before the strict legislation was passed. Taking advantage of the changes in the INA, the government moved to dismiss the case on the grounds that the federal courts no longer had jurisdiction over this case. On appeal, the Ninth Circuit ruled that IIRIRA did not deprive the courts of jurisdiction in this matter and affirmed the district court's rulings in favor of the temporary residents and LPRs.
