Appeals Court Deals Setback to U.S. Effort to Deport ‘L.A. 8’

In a major victory for the political rights of immigrants, a federal appeals court in San Francisco on Thursday rejected the Justice Department’s two major arguments in its decade-long campaign to deport a group of Southern California immigrants alleged by the government to have ties to Palestinian terrorists.

This was the latest of many setbacks for the government in the long-running case of seven Palestinians and a Kenyan who have come to be known as the “L.A. 8.” The case began in January 1987, when federal agents arrested the eight and initiated deportation proceedings against them. Soon thereafter, the eight filed a civil rights case against the government, contending that their prosecution by the Immigration and Naturalization Service was selective.

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The eight have won a number of court victories but the case has dragged on. Thursday’s set of unanimous rulings by the U.S. 9th Circuit Court of Appeals represents a particular setback for the government because of the nature of the decisions.

Late last year, the government attempted to get the selective prosecution case dismissed. Justice Department attorneys contended that such suits were retroactively barred by the Illegal Immigration Reform and Responsibility Act of 1996. But in a 3-0 decision, the appeals court ruled that the act does not prohibit constitutional challenges to immigration-related actions by the government, such as deportations.

The court upheld a January ruling of U.S. District Judge Stephen V. Wilson in Los Angeles, who held that if the government’s position had prevailed it would “close the door” to any meaningful appeal of a deportation in the case.

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Justice Department lawyers Philip D. Bartz and Douglas Letter contended that Congress clearly intended in the new law to reduce the authority of federal judges in immigration matters. But, they said, a federal appeals court could consider an appeal if an administrative judge issued a deportation order.

Wilson, a 1985 appointee of President Ronald Reagan, rejected that argument. Wilson ruled that there would be no way for a meaningful appeal because an administrative law judge is not authorized to conduct sufficient fact-finding to make a record that could be referred to on appeal. The 9th Circuit agreed on practical grounds and said an important value was at stake.

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“We are guided by the well-established principle that where possible, jurisdiction-limiting statutes should be interpreted to preserve the authority of the courts to consider constitutional claims,” wrote Judge Dorothy W. Nelson of Pasadena. Her decision was joined by Judges William Canby of Tucson and Jack Tanner of Seattle.

“The Supreme Court has stated unequivocally that ‘serious constitutional questions . . . would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim,” Nelson added.

On the second major issue, the 9th Circuit ruled that the 1st Amendment protects the rights of any person--citizen or immigrant--to support the lawful activities of a foreign organization that has been designated “terrorist” by the State Department.

The government had contended that the eight had engaged in illegal support for the militant Popular Front for the Liberation of Palestine, which has been designated “terrorist” by the U.S. government.

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After extensive hearings, Wilson concluded that the group is also engaged in a wide range of lawful activities, including “education, day care, health care . . . as well as cultural activities, publications and political organizing.” The appeals noted Thursday that despite the government’s assertions about the group, “it does not dispute Wilson’s finding that the organization conducts lawful activities.”

The plaintiffs have maintained from the beginning that they supported only the legal activities of the Palestinian group.

In a 1995 ruling, the 9th Circuit held that resident aliens have the same 1st Amendment rights as citizens. This time, though, the government contended that it had new evidence--that the eight people had engaged in fund-raising for the militant group not alleged in the original complaint. The government’s documents did not contend, however, that the fund-raising was to support terrorism.

The appeals court was not persuaded. It upheld Wilson’s finding that the government had not produced any evidence that the immigrants had shown a specific intent to further the illegal aims of the liberation front, and, therefore, the eight had engaged in constitutionally protected activity.

“Moreover, the government has not challenged [Wilson’s finding] that the INS targeted the plaintiffs for their mere association with the PFLP,” Nelson wrote. She noted that the “L.A. 8” had introduced evidence showing that the government had declined to take action against individuals in this country who raised money for the Nicaraguan Contras and the Moujahedeen, who oppose the Iranian government.

The decision was hailed by David Cole of the Center for Constitutional Rights and Marc Van Der Hout of the National Lawyers Guild, who have been representing the immigrants along with lawyers from the American Civil Liberties Union.

“The government was trying to resuscitate the principle underlying the McCarthy era--namely guilt by association,” Cole said. “We are pleased that the court declined to resuscitate that long-dead principle.”

Van Der Hout said he hoped that the decision would prompt the government “to reconsider its long-standing efforts to deport our clients.”