Supreme Court Rules Aliens Have No First Amendment Defense Against Selective Deportation For Political Ties Lower Courts Had Barred the Deportations on First Amendment Grounds

February 24, 1999 12:00 am

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Wednesday, February 24, 1999

Washington, DC — The Supreme Court today ruled that immigrants have no right to object to being targeted for deportation based on their association with a political group. In an astounding decision that reached an issue neither party had even briefed, the Court effectively denied to all immigrants in this country the same First Amendment rights that U.S. citizens enjoy.

The case arose out of the government’s longstanding efforts to deport eight noncitizens for their political associations and activities. The noncitizens — seven Palestinians and a Kenyan — were arrested more than a decade ago by the INS and charged with being associated with a group that “advocates world communism,” then a deportable offense under the McCarran-Walter Act. From the outset, the government has admitted that none of the eight engaged in any criminal or terrorist activities, and has admitted that it singled them out for deportation based on their political ties, distribution of literature, communication with other members, and humanitarian aid fundraising.

The INS instituted the deportation proceedings in 1987, accusing the eight of associating with the Popular Front for the Liberation of Palestine, a constituent group of the Palestine Liberation Organization. Documents in the court record show that it did so at the behest of the FBI, which urged the INS to deport the eight in order to hamper the political activities of the PFLP in the LA area, even though the FBI concedes it found no evidence of criminal conduct by the group.

In one document, the FBI specifically urges the deportation of one of the eight because he is “intelligent, aggressive, and has great leadership ability,” and therefore incapacitating him would hamper the group.

The Supreme Court ruled that a 1996 immigration statute barred the immigrants from seeking federal court review at any time of their selective prosecution claims, and then went on to rule that this raised no constitutional problems because aliens have no First Amendment right to object to being singled out for deportation based on their political associations. In doing so, it reached an issue that it had specifically declined to take up when it accepted review, and did so without any briefing from the parties.

David Cole, a professor at Georgetown University Law Center and attorney with the Center for Constitutional Rights, who argued the case for the immigrants, said, “We are not only disappointed; we were blindsided. The Court has denied to all immigrants in this country the right to engage in the same political activities that citizens have an unquestioned First Amendment right to engage in. And it did so after telling us not to address the question. The Court has denied immigrants the right to speak without even allowing them to be heard on that question.”

Marc Van Der Hout, of the National Lawyers Guild, and co-counsel in the case, said: “Justice Scalia’s opinion is nothing short of outrageous. It relegates immigrants to a second-class status that is reminiscent of the political witchhunts of the McCarthy era, which were initially embraced and then repudiated by history. Our nation of immigrants is now being forced into political silence, chilled from speaking out about injustices in their homeland and this country.”

“Today’s decision has removed a critical constitutional safeguard against discriminatory enforcement of the immigration laws,” said Lucas Guttentag, director of the ACLU’s Immigrant’s Rights Project. “The government now has free rein to target immigrants for deportation based on their lawful political activities.”

The immigrants are represented by the Center for Constitutional Rights, National Lawyers Guild, ACLU of Southern California, the ACLU National Office, and Sonnenschein, Nath & Rosenthal.

The ACLU’s joint brief on behalf of ADC can be found at: /court/renovadc.html

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