Statement of Lucas Guttentag
Director, ACLU Immigrants' Rights Project
Reno v. American-Arab Anti-Discrimination Committee ("ADC") is the first case to reach the Supreme Court under the sweeping changes to the immigration laws enacted in 1996. The case itself is more than ten years old. The specific question before the Court is whether immigrants singled out for deportation based on their political beliefs can bring an action in federal district court to enjoin deportation proceedings brought in retaliation for exercise of First Amendment rights.
Both a Reagan-appointed federal district judge in Los Angeles and a unanimous panel of the Ninth Circuit ruled that the INS had engaged in unconstitutional selective prosecution by targeting eight non- citizens on the basis of their political support for the Popular Front for the Liberation of Palestine (PFLP). None of the individuals has ever been charged or accused of committing any crime, of posing any danger to the community or of engaging in any so-called terrorist activity. All they are accused of is publishing leaflets, garnering support and assisting in moneyraising for the lawful activities of the PFLP. William Webster, when he was Director of the FBI, testified in Congress, "if these individuals had been United States citizens, there would not have been a basis for their arrest."
Those facts, and many others, are not in dispute in this case. Nor, as the case is postured in the Supreme Court, is there any dispute that the plaintiffs' First Amendment rights are violated by the government's selective prosecution or, more precisely, selective initiation of deportation proceedings.
The only issue before the Supreme Court is whether the plaintiffs can enjoin the selective prosecution through an action in federal district court. Very specifically, the question, as reformulated by the Court in its certiorari grant, is whether in light of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act -- or IIRIRA -- the district court could entertain plaintiffs' challenge to the deportation proceeding prior to entry of a final order of deportation. Notably, the Court specifically declined to grant cert. on the second question raised by the government, namely whether the plaintiffs' alleged fundraising activity is protected by the First Amendment. That part of the case is not before the Court, and the court of appeals' ruling that the plaintiffs' First Amendment rights have been violated is a given for purposes of Supreme Court review.
The government's argument is that despite the plaintiffs' First Amendment injury, the federal district court lacked jurisdiction to hear their claim and was barred from entering injunctive relief. The government's contention is that the plaintiffs must go all the way through to the conclusion of the deportation process and that they must raise any selective prosecution claim only in an appeal to the court of appeals from the final administrative decision based on the record of that proceeding after the entire process is completed.
We reject the government's approach because it would deny the plaintiffs a timely and effective judicial forum in which to litigate their First Amendment claim. The review the government proposes would deprive plaintiffs of meaningful judicial review of their constitutional claim for two reasons. First, it would be too late because the targeting of plaintiffs for deportation constitutes the First Amendment injury and continuation of the proceedings causes an ongoing chill of plaintiffs' freedom of speech.
Second, the selective prosecution claim can only be developed and proven in a district court action. The normal court of appeals review of a final deportation order does not allow for any factual development outside the administrative record. Any review by a court of appeals at the end of that process is limited to the evidence presented at the hearing and to the administrative deportation proceedings. That is fine when the issue is whether the person is actually deportable. But that's not the issue here.
Here the question is whether the INS engaged in impermissible selective prosecution. The essence of that claim is that the government targeted these plaintiffs based on their political beliefs and activities while thousands of others who committed the same technical immigration violations were left alone. The 11,000 pages of evidence on which the district court based its injunction could never have been developed in a deportation hearing, and the plaintiffs would have been unable to prove their claim.
The government's response argues that the Administrative Procedure Act (APA) would allow the court of appeals reviewing the final deportation order to transfer the case to a district court for fact- finding. That's the § 2347(b)(3) issue in the case. Under this theory, the government argues that the plaintiffs must go through the entire deportation process, that they then must appeal the final deportation order to the court of appeals and that the appellate court may then transfer the case to a district court for discovery if the selective prosecution claim requires resolution of factual issues not addressed in the administrative record.
The flaws in this procedure are several. First, it would engender precisely the kind of delay that the government claims to be opposing. The plaintiffs would have to complete the entire deportation process and appeal to the circuit court just to get back to the district court where the case is right now.
Second, the § 2347(b) remand procedure is prohibited by the Immigration Act and the transfer procedure the government proposes was specifically rejected by Congress when it enacted the 1996 IIRIRA.
Third, the government's argument concedes that normal appellate review is not sufficient for plaintiffs' selective prosecution claim and completely disregards the ongoing chill to plaintiffs' First Amendment rights.
The question before the Court of how and when plaintiffs can litigate their selective prosecution claim has little to do with the specific provisions of IIRIRA on which the cert. grant focuses. Only one provision of IIRIRA is even arguably relevant. That is 8 U.S.C. § 1252(g), which IIRIRA enacted. But the government relies on that provision only to bolster its arguments, not to contend that IIRIRA fundamentally altered the procedure governing judicial review of plaintiffs' claims. Nonetheless, the Court modified the cert. question to focus on IIRIRA, so it may believe that IIRIRA has a central role to play in the case.
Notably, there are circuit court cases in the pipeline that raise the right to judicial review under IIRIRA directly. The result in those cases is criticized by the government in a footnote. (Pet. Br. at 45 n. 20.) Several more courts have issued similar rulings recently. These cases all concern longtime legal resident aliens who are deportable for committing a criminal offense many years ago. The government argues that those immigrants are barred from challenging the retroactive application of 1996 immigration act because IIRIRA purports to eliminate all judicial review of their deportation orders. In those cases, legal immigrants are barred from getting judicial review of a deportation order even at the end of the immigration process.
Four courts of appeals have held that the provisions of IIRIRA barring that review do not prohibit a habeas corpus challenge. Two of the courts, the Second and Ninth Circuits, found that an alien is constitutionally entitled to judicial review under the Suspension Clause of the Constitution prohibiting suspension of the writ of habeas corpus. The First Circuit ruled similarly but relied principally on the Court's 1996 Felker decision.
In each of those cases, the courts held that an immigrant is entitled to judicial review of constitutional and statutory claims. There is a good chance that the Solicitor General will seek cert. in some or all of these cases. That would directly present the Court with fundamental questions about the meaning of the Suspension Clause. The relevant courts of appeals cases are Henderson et al. v. INS, __ F.3d __, 2nd Cir. No. 97-4050 (Sept. 18, 1998); Magaña-Pizano v. INS, __ F. 3d __, 1998 WL 550111 (9th Cir. 1998); and Goncalves v. Reno, 114 F.3d 110 (1st Cir. 1998). See also Lerma de Garcia v. INS, 141 F.3d 215 (5th Cir. 1998). The first cert. deadline in these cases is in Goncalves on October 29.
