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RENO V. AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE: SUPREME COURT DEALS BLOW TO IMMIGRANT RIGHTS
On February 24, 1999, the United States Supreme Court issued its first decision dealing with one of the jurisdictional limitations created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). In an opinion authored by Justice Scalia, the Court held that section 242(g) of the Immigration and Nationality Act, which eliminates judicial review of any case motivated by a "decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien" applies only to actions relating those three types of action - commencing proceedings, adjudicating cases, and executing removal order. The provision thus eliminates collateral review of deportation proceedings, and limits review to that of the final decision of the Attorney General. Because Congress made section 242(g) apply "without limitation [to] all past, pending, or future claims," it operated in this case to deprive the federal courts of jurisdiction of the plaintiffs' claims of discriminatorily selective enforcement of immigration laws.
The decision in this case, with only one dissenting opinion, does not bode well for the many other cases challenging the jurisdictional provisions of IIRAIRA working their way through the federal courts.
The plaintiffs in this suit were the subjects of deportation proceedings initiated in 1987. They were all members of the Popular Front for the Liberation of Palestine, a group characterized by the government as supporting terrorism and communism. At the time, a provision of the INA allowed for deportation on the basis of advocacy of communism, and each was charged under this provision. Six of the eight were also charged with minor status violations. They filed suit in federal district court, claiming the anti-Communist deportation provision was unconstitutional, and seeking an injunction against further INS action. In response the INS dropped the anti-Communist charges and charged two of the eight plaintiffs, the only permanent residents of the group, with deportability as an alien who is a member of an organization that advocates violence against the government. The charges of technical violations were retained. The plaintiffs responded by adding a claim that the INS was selectively enforcing immigration laws against them because of their political opinions, which are protected by the First Amendment.
In 1994 the District Court issued a preliminary injunction against the INS, finding that the plaintiffs were likely to prove their claim that routine status requirements were not used as a basis for deportation against persons who were not members of groups like theirs, and that this, combined with the chill the threat of deportation poses to the exercise of First Amendment rights, constituted the irreparable injury necessary to issue an injunction. In 1995 the Ninth Circuit Court of Appeals reviewed and upheld the injunction. In doing so, the Ninth Circuit focused on the fact that while the INA provided that the sole means of review was judicial review of the agency's final action (8 U.S.C. § 1105a (repealed)), the record such proceedings would create would be insufficient to determine a selective enforcement claim, and thus the case was properly in federal court under general federal question jurisdiction (28 U.S.C. 1331).
The Attorney General appealed this decision, but while the appeal was still pending, IIRAIRA was passed. On the basis of the new law, the Attorney General filed motions in both the District Court and the Ninth Circuit arguing that new INA § 242 deprived them of jurisdiction over the selective enforcement claim. Both courts denied the motion, holding jurisdiction still existed even after the passage of § 242(g). The Supreme Court reversed this ruling. 
The Court began its analysis by noting that most of the changes in judicial review created by IIRAIRA do not apply retroactively (IIRAIRA § 309(c)(1)). However, there is a specific provision requiring the application of § 242(g) to all claims relating deportation proceedings. (IIRAIRA § 306(c)(1)). The Court disagreed with both parties' characterization of § 242(g) "as covering all or nearly all deportation claims." This all-encompassing view of the statute forced both parties, the Court said, into the view that the provision providing for non-retroactivity of most of IIRAIRA's judicial review provisions conflicted with the retroactivity of §242(g). Neither of the parties, nor the Ninth Circuit, according to the Court, presented a satisfactory resolution to the dilemma. 
The Supreme Court avoided the dilemma by holding that §242(g) "applies only to three discrete actions that the Attorney general may take: he 'decision or action' or 'commence proceedings, adjudicate cases, or execute removal orders." The provision does not apply to many aspects of the deportation process, "such as the decision to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order." The assumption of the parties that the language of § 242(g) was a shorthand way of referring to the entire deportation proceeding was, the Court found, unwarranted. Such a statute does exist, IIRAIRA § 306(b)(9) (INA § 242(b)(9)), but this statute applies only prospectively. To read § 242(g) as the parties did, to cover all actions relating to deportation, rendered § 242(b)(9), which limits judicial review of all questions arising from "any action taken . . . to remove an alien" to judicial review of the final agency action, superfluous. 
Section 242(g), the Court held, was enacted to preclude judicial review of certain actions involving the exercise of discretion, particularly INS decisions relating to "deferred action." Deferred action is the INS practice of refraining from commencing proceedings, terminating proceedings, or declining to enforce final orders of deportation, based on an individualized determination that refraining from action is a fairer course of conduct. Aliens who were denied deferred action often attempted to sue to force a change of decision, and courts at times responded favorably to such suits. According to the Court, "section 242(g) seems clearly designed to give some measure of protection to 'no deferred action' decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed." 
Under this view of § 242(g), the plaintiffs' claims of selective enforcement were clearly barred, arising as they did from the decision to commence deportation proceedings. Despite finding the plaintiffs' claims barred by § 242(g), the Court went on to address the merits of their claim of selective enforcement. Plaintiffs had argued that the doctrine of constitutional doubt required interpretation of § 242(g) to allow their claim, saying that the administrative deportation proceeding would be inadequate to develop the facts of their constitutional claim, the absence of habeas corpus review, and the chill to the exercise of First Amendment rights posed by the threat of deportation combined to require immediate review of their claims, without waiting for a final order. This argument was rejected because "an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense to his deportation."
Selective prosecution claims are immensely difficult to prove even in the criminal law context, because of the great discretion vested in prosecutors concerning the conduct of criminal indictments and trials. Allowing review of the prosecutor's discretionary decision would have a chilling effect on law enforcement, making prosecutors hesitant to bring cases and overall undermining the efforts of the government in enforcing criminal law. These concerns are, for the Court, magnified in an immigration context. Not only are the same concerns counseling against allowing selective prosecutions in criminal cases present, there is the additional concern that delaying deportation proceedings by allowing review prolongs the continuing legal violation of the alien's unlawful presence. The government's interest in enforcing immigration laws without interference or second-guessing is quite compelling, and the alien's interest in avoiding deportation to which he is legally subject on the basis that he has been wrongfully selected for deportation is not very great.
The Court did leave open the possibility that some deportation proceedings could be so motivated by improper discrimination that judicial review by a selective enforcement claim would be allowed, but did not give any clues at to what evidence would be required to make such claim. 
Justices Ginsburg, Breyer and Stevens concurred in the judgment. Ginsburg and Breyer agreed that § 242(g) worked to deprived the federal courts of jurisdiction over plaintiffs' collateral attack on their deportation, but disagreed with the Court's disposition of the selective enforcement claim. While the plaintiffs in this case did not make the required showing, the two Justices maintained that were a showing of bad faith, lawlessness, or blatant constitutional violations by the INS made, collateral attack would be proper, despite § 242(g). Otherwise, judicial review of matters relating to deportation is best left until review of the final INS action. These review proceedings must be adequate to fully address the constitutional claims presented, and whether it is possible for the court of appeals reviewing the final order to send the case to a district court for further fact-finding "is a matter properly postponed."
Justice Stevens resolved the apparent clash between IIRAIRA § 306(c)(1) and § 309(c)(1) by reading § 242(g) to bar all collateral attacks on deportation proceedings, whenever they arose, effective as soon as IIRAIRA was passed. Section 242(b)(9), on the other hand, which is not retroactive, does not apply to cases pending when it was passed, so judicial review of the administrative deportation proceedings remains for those cases as it was prior to IIRAIRA. Because the plaintiffs in this case made a collateral attack on the deportation proceedings, § 242(g) barred it.
Justice Souter was the only dissenter. He maintained that there was no way to reconcile the conflict between IIRAIRA §§ 306(c)(1) and 309(c)(1). He criticized the majority's attempt to do so by reading § 242(g) 'narrowly' to apply only to commencement, adjudication and execution. These words, Souter believed, did not refer to any particular phase of the proceeding, but to the entire course of deportation; indeed, each of the examples used by the majority as an example of a decision not covered by § 242(g) falls into one of those three categories. Investigation and surveillance relate to the commencement of proceedings, and issuing show cause orders and refusing to reconsider cases are adjudicative actions. Furthermore, the actions included in § 242(g) involve no more discretion than any other decision of the Attorney General related to deportation. 
Because the conflict between the two provisions could not be reconciled, one of them had to trump the other; in Souter's opinion, this was § 309(c)(1), the non-retroactivity provision. He gave two reasons for this: first, there is no reason to believe Congress singled out those who were in proceedings when IIRAIRA was enacted to deprive them of all judicial review, second, complete preclusion of judicial review of claims relating to deportation "would raise the serious constitutional question of whether Congress may block every remedy for enforcing a constitutional right." These considerations led Souter to believe judicial review, including collateral attack, should remain the same for proceedings pending when IIRAIRA was enacted as it was prior to the new law.
Souter, like Ginsburg, Breyer and Stevens, disagreed with the Court's treatment of the claim of selective prosecution. Souter's opinion reveals that the Court had not asked the parties to brief the issue of the place of selective prosecution claims in the immigration context. But because the Court addresses it, Souter does as well. In Souter's view, the concern behind an action for selective prosecution is the interest, shared by individuals and the government alike, that prosecutorial discretion not be used to violate constitutional rights. This concern is not altered by the presence of an ongoing violation of immigration law, or by the fact that deportation is not considered punishment. Souter notes that ultimately this issue is in need of further discussion and thus not appropriate for the summary treatment given it by the Court.