Petitioners,
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Respondents.
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The Criminal Justice Legal Foundation (CJLF)(1) is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the due process protection of the accused into balance with the rights of the victim and of society.
Society has a strong interest in being free from the threat of terrorism. The present case will affect the government's ability to rapidly and effectively deport persons supporting terrorist organizations. Delay in the deportation of these individuals is contrary to the rights of victims and society which CJLF was formed to advance.
In 1987, the Immigration and Naturalization Service ("INS") began proceedings to deport eight alien members of the Popular Front for the Liberation of Palestine ("PFLP"). American-Arab Anti-Discrimination Committee v. Reno, 119 F. 3d 1367, 1370 (CA9 1997) ("American-Arab II"). The government contended that the "PFLP is an international terrorist and communist organization." Ibid. The organization, which has proclaimed the United States one of its enemies, has engaged in terrorist activity that has resulted in the deaths of at least 26 individuals, 17 of whom were United States citizens. See Pet. for Cert. 2. The FBI had uncovered evidence that the eight aliens were engaged in fundraising activities for the PFLP. See Pet. for Cert. 3. Based on this information, the initial deportation charges were drafted by the INS. Pet. for Cert. 3-4.
The INS originally charged the aliens with routine status violations under 8 U. S. C. §§1251(a)(2) and 1251(a)(9) and for one violation based on the group's fund-raising activities, a violation of 8 U. S. C. §1251(a)(6). American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F. 2d 501, 504 (CA9 1991). Administrative remedies for the status violations proceeded through the steps of the Immigration and Nationality Act's ("INA") statutory review scheme. See id., at 505, n. 2. The section 1251(a)(6) charge, on the other hand, became the basis for a challenge in federal district court by the American-Arab Anti-Discrimination Committee and the eight aliens. American-Arab II, supra, 119 F. 3d, at 1370. The original complaint filed in the district court claimed "that section 1251(a)(6)(D) violated the first and fifth Amendments, that the government engaged in selective prosecution in violation of the first and fifth Amendments, and that the INS procedures could not provide them with a fair and impartial hearing." American-Arab Anti-Discrimination Committee v. Thornburgh, supra, 970 F. 2d, at 505. The plaintiffs' claimed "that the INS had singled them out for selective enforcement of the immigration laws based on the impermissible motive of retaliation for constitutionally protected associational activity." American-Arab Anti-Discrimination Committee v. Reno, 70 F. 3d 1045, 1054 (CA9 1995) ("American-Arab I").
The section 1251(a)(6) charges were subsequently dropped. However, additional charges were alleged against Hamide and Shehadeh, the two permanent resident aliens. Pet. for Cert. 4. The INS "brought new charges against them under 8 U. S. C. §1251(a)(6)(f)(iii), alleging that they were deportable as members of an organization that advocates or teaches the unlawful destruction of property. Later, the INS added a charge under 8 U. S. C. §1251(a)(6)(f)(ii), alleging that Hamide and Shehadeh were associated with a group that advocates the unlawful assaulting or killing of government officers." American-Arab I, 70 F. 3d, at 1253.
The District Court eventually issued a preliminary injunction enjoining the INS from conducting proceedings against the six aliens charged with routine status violations. See American-Arab I, 70 F. 3d, at 1054.. The District Court, finding it lacked jurisdiction over Hamide and Shehadeh's claims, granted summary judgment to the government as to those claims. Pet. for Cert. 5. The Court of Appeals in American-Arab I, however, decided that the federal courts had jurisdiction to review Hamide and Shehadeh's selective enforcement claims. American-Arab I, 70 F. 3d, at 1071. The District Court then stayed the proceeding against Hamide and Shehadeh and upheld the injunction of the proceedings against the other six plaintiffs. American-Arab II, 119 F. 3d, at 1370; see Pet. for Cert. 5-8 (detailed description of these federal court decisions).
The government appealed the "district court's decision refusing to dissolve the existing preliminary injunction and granting the injunction in favor of Hamide and Shehadeh." American-Arab II, 119 F. 3d, at 1370. While the appeal was pending, the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") was enacted. Pet. for Cert. 9. The government then filed motions to dismiss based on the fact that 8 U. S. C. §1252(g) as enacted by the IIRIRA deprives the federal court of jurisdiction over the aliens' claims. American-Arab II, 119 F. 3d, at 1371.
The Court of Appeals in American-Arab II agreed with the government that section 1252(g) applies retroactively but concluded that the section does not eliminate federal court jurisdiction over the plaintiffs' claims. Id., at 1372. The Court of Appeals concluded that application of section 1252(g) would raise " 'serious constitutional question[s] . . . if [it] were construed to deny any judicial forum for a colorable constitutional claim.' " Ibid. (quoting Webster v. Doe, 486 U. S. 592, 603 (1988)) (internal quotation marks and citations omitted). To correct this perceived denial of meaningful judicial review, the court construed section 1252(f) to preserve the federal court's jurisdiction and held that it was "incorporated" in the retroactive subdivision (g). Id., at 1373. The Court of Appeals also reaffirmed its holding in American-Arab I that "prompt judicial review of the Plaintiffs' claims was required because violation of Plaintiffs' First Amendment interests would amount to irreparable injury that 'cannot be vindicated by post-deprivation remedies.' " Id., at 1374 (quoting, with original emphasis, American-Arab I, supra, 70 F. 3d, at 1057).
The Court of Appeals then affirmed the District Court's decision to issue the preliminary injunction to Hamide and Shehadeh and to affirm the injunction issued to the other six aliens. Pet. for Cert. 10. The court also denied the government's request for rehearing en banc. Pet. for Cert. 11. The government then sought a writ of certiorari from this Court. Certiorari was granted on June 1, 1998, limited to the jurisdictional question.
The Court of Appeals' interpretation of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") is contrary to the clear intent of Congress to consolidate all litigation of deportation into the statutory review procedure of 8 U. S. C. §1252. The Court of Appeals read 8 U. S. C. §1252(b)(4)(A) and its predecessor, 8 U. S. C. former §1105a(a)(4), in isolation to preclude transfer under 28 U. S. C. §2347(b)(3) to the district court. These provisions should not be read in isolation.
Considering the section as a whole and the principle of INS v. Chadha, 462 U. S. 919 (1983), amicus submits that the requirement that the petition be decided only on the administrative record should be limited to those claims which the alien could present to the agency. Under this understanding, 28 U. S. C. §2347(b) remains available and permits meaningful review of all claims. Congress intended that review of the final order be the complete and exclusive remedy. Amicus' interpretation of the IIRIRA will allow this intent to be realized. .
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Footnote 1. Rule 37.6 Statement: This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.
Both parties have given written consent to the filing of this brief. [GO BACK]