Deportation Effort Against 8 Dealt Setback : Immigration: In case of activists linked to Palestinian group, appeals court rules resident aliens have same 1st Amendment rights as citizens.

A federal appeals court in San Francisco on Wednesday ruled that resident aliens have the same 1st Amendment rights as citizens, dealing a major setback to the federal government in its eight-year campaign to deport seven Palestinian men and a Kenyan woman alleged to have ties to Palestinian terrorists.

The U.S. 9th Circuit Court of Appeals also held that the federal government cannot use secret evidence of alleged national security concerns to deport two of the men it accuses of supporting terrorism through ties to the Popular Front for the Liberation of Palestine.

The sweeping, 3-0 decision in the case of the so-called “L.A. 8”--all longtime residents of Los Angeles--upheld two earlier rulings by U.S. District Judge Stephen V. Wilson of Los Angeles.

The ruling is also significant because it flies in the face of legislative efforts by the Clinton Administration that would permit the use of secret evidence against immigrants in deportation proceedings and would allow immigrants to be deported for their association with so-called “terrorist” groups.

“This is a wonderful decision; it gives us everything we asked for,” said David D. Cole, an attorney with the New York-based Center for Constitutional Rights.

USC law professor Erwin Chemerinsky, who on behalf of 14 nationally recognized law professors co-authored a brief in support of the immigrants, also praised the ruling.

“This is probably the most direct decision by a federal court that deportation can’t be based on speech and associational activities,” Chemerinsky said.

The appellate judges also upheld Wilson’s preliminary injunction against the selective enforcement of immigration laws against six of the aliens.

They reversed Wilson on one ruling--his determination that he did not have jurisdiction to issue an injunction halting the deportation proceedings against the other two, Khader Musa Hamide and Michael Ibrahaim Shehade, who have permanent resident alien status. The 9th Circuit sent that part of the case back to Wilson for further hearings and their lawyers said they expect Wilson to grant an injunction in that matter too.

Overall, the 9th Circuit decision significantly increases the likelihood that all eight activists will be able to remain in the United States, said San Francisco attorney Marc Van Der Hout, one of the lead lawyers for the immigrants.

Michael P. Linderman, the lead Justice Department attorney on the case, said he would make no immediate comment because he had not had a chance to read the decision. But legal observers said they thought that the breadth of the ruling made it likely that the department would seek a rehearing from a larger panel of 9th Circuit judges or ask for a review by the U.S. Supreme Court.

Van Der Hout said he hoped the ruling would prompt the Clinton Administration and Congress to re-examine the pending bills allowing secret evidence in deportation proceedings. “In our mind they’re absolutely unconstitutional,” he said.

Justice Department lawyers have acknowledged for some time that they could not prosecute U.S. citizens for having ties to the PFLP. Because of that, said Judge Dorothy W. Nelson of Pasadena, who wrote the opinion, the case turned on a key legal question: “Whether aliens may be deported because of their associational activities with particular groups, or whether aliens who reside within the jurisdiction of the United States are entitled to the full panoply of 1st Amendment rights of expression and association.”

Nelson’s opinion stressed that under Supreme Court precedents, “guilt by association” violates the 1st Amendment and that advocacy may be punished only if it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” To prove that in a case such as this, the government would have to show that the individual in question had a “knowing affiliation” and a “specific intent” to further illegal aims.

“Here,” Nelson wrote, “the government has not attempted to show that the aliens’ association with the PFLP satisfies” the applicable standard. Instead, she said, the government “argues that aliens are not entitled to the same 1st Amendment protections that citizens enjoy.”

Nelson, joined by judges William C. Canby Jr. of Tucson and Jack E. Tanner of Seattle, flatly rejected that argument. She emphasized that the Supreme Court has consistently “accorded to aliens living in the United States those protections of the Bill of Rights that are not, by the text of the Constitution, restricted to citizens,” including the freedoms provided for in the 1st Amendment.

She stressed that the United States is “a nation founded by immigrants” and she noted that “aliens, who often have different cultures and languages, have been subjected to intolerant and harassing conduct in our past, particularly in times of crisis.”

“It is thus especially appropriate,” Nelson added, “that the 1st Amendment principle of tolerance for different voices restrain our decisions to expel a participant in that community from our midst.”

The 9th Circuit judges also rejected Justice Department arguments that the government’s broad authority over immigration matters justifies limited 1st Amendment protection for aliens at deportation.

“If aliens do not have 1st Amendment rights at deportation, then their 1st Amendment rights in other contexts are a nullity, because the omnipresent threat of deportation would permanently chill their expressive and associational activities,” Nelson wrote.

On the secret evidence issue, Wilson had ruled previously that “the use of undisclosed, confidential information” violated the due process rights of the immigrants. Wilson reviewed the government’s confidential information in private and concluded that the Immigration and Naturalization Service could reveal some of the information it wanted to use without compromising national security.

Government lawyers maintained that they did not have to offer any evidence that these individuals threatened national security, relying on general pronouncements in State Department bulletins and a Clinton Administration executive order prohibiting “any United States persons” from transacting business with the PFLP.

The 9th Circuit found the government’s contentions in this area “misguided” because of the strong possibility of due process violations when a decision is based on secret information that is available to only one side in a case.

“We cannot in good conscience find that the President’s broad generalization regarding a distant foreign policy concern and a related national security threat suffices to support a process that is inherently unfair because of the enormous risk of error and the substantial personal interests involved,” in a deportation proceeding, Nelson wrote.