Official’s Dual Role Taints Case Against Aliens, Lawyer Charges

The nation’s top immigration court appellate official participated three years ago on a then-secret government committee that shaped plans to apprehend and deport alien terrorists, according to recently declassified government documents.

The lawyer for a group of Los Angeles-area immigrants fighting deportation, Marc Van Der Hout, charged Wednesday that it was “a clear conflict of interest” for the official to serve on a policy-making panel while supervising the immigration courts. The official, David Milhollan, is director of the Executive Office for Immigration Review in Falls Church, Va., which oversees the nation’s two dozen immigration courts and all immigration appeals.

In addition, Van Der Hout, an attorney with the National Lawyers Guild, said that this dual role “taints” the government’s case against the group of Los Angeles immigrants.

Documents, newly released under the federal Freedom of Information Act, show that the panel, the Alien Border Control Committee, also included Robert L. Bombaugh, director of the Justice Department’s Office of Immigration Litigation, which has been prosecuting the immigrants, seven Palestinians and a Kenyan. Also on the panel were representatives of the FBI, the CIA and the State Department’s counterterrorism unit.

The panel’s objectives were to “expeditiously remove terrorist aliens found within the United States” and to deport “alien activists who are not in conformity with their immigration status.” It called for non-public deportation proceedings on the basis of national security, and detention of aliens in Louisiana and Florida facilities. The plan apparently was not implemented.

“It’s outrageous that a government official, supposed to be sitting in a judicial capacity, would be meeting with the prosecutorial arm of the agency (the Justice Department) whose cases he’s reviewing,” Van Der Hout said. “It’s like a federal judge meeting with prosecutors in advance of trying a case.”

Milhollan’s chief spokesman and counsel, Jerry Hurwitz, did not return a reporter’s telephone calls.

In a legal brief responding to the conflict charges, Justice Department lawyers argued that the allegation “can have no relevance” to the charges against the immigrants because the charges against the aliens were filed by Los Angeles officials of the Immigration and Naturalization Service, and not by Milhollan.

Daniel Rodriguez, a UC Berkeley law professor who is an administrative law specialist, said the Milhollan disclosure “raises practical, ethical and maybe, in fact, statutory difficulties when you have adjudicative officials acting in policy-making roles.

“It appears entirely improper to participate in substantive policy, and then to act as a judge,” he said.

Milhollan’s role on the border control panel, established in 1986 on the recommendation of then-Vice President George Bush’s task force on terrorism, was made public in federal district court records in Los Angeles.

Van Der Hout and other lawyers for the immigrants, as a result of the disclosure, are attempting to question Milhollan and Hurwitz, who also participated on the panel, in an effort to learn more about their roles. Their request was made to U.S. District Judge Stephen V. Wilson in Los Angeles.

Last December, Wilson overturned several key provisions of the McCarran-Walter Act, which authorized the deportation of aliens for advocating world communism, totalitarian dictatorship or the unlawful destruction of property. The government has appealed this decision.

The eight immigrants were arrested in January, 1987, and jailed for almost two weeks on charges that they belonged to a Palestinian group with a history of terrorism, the Popular Front for the Liberation of Palestine. All denied the charges, and none were charged criminally.

Two still face subversion charges under McCarran-Walter--Khader Hamide, 35, of Los Angeles and Michel Shehadeh, 33, of Long Beach.

An immigration judge, who has been conducting the deportation proceedings in Los Angeles, recently ruled that their cases would be shelved until the U.S. 9th Circuit Court of Appeals rules on Wilson’s decision. The government has also appealed the ruling to the Board of Immigration Appeals. Milhollan is chairman of that panel.

Additionally, the immigration appeals panel last year rejected a plea by the immigrant defendants that their constitutional rights were being violated during the deportation proceedings.

Visa violation charges against three of the aliens have been waived by the government. Three others, facing similar charges, still face deportation proceedings, which are scheduled to continue next week.

The government’s alien control contingency was first reported in The Times in 1987, shortly after deportation proceedings began against the eight immigrants.

The government documents were ordered to be made public last April by a federal judge in Washington, following a two-year legal battle led by the Center for National Security Studies, a Washington group affiliated with the American Civil Liberties Union.