RENO V. AMERICAN-ARAB ANTI-DISCRIMINATIONCOMM. (97-1252) 525 U.S. 471 (1999)
119 F.3d 1367, vacated and remanded.

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 97—1252

JANET RENO, ATTORNEY GENERAL, et al.,
PETITIONERS v. AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[February 24, 1999]

Justice Scalia delivered the opinion of the Court.*

Respondents sued petitioners for allegedly targeting them for deportation because of their affiliation with a politically unpopular group. While their suit was pending, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009—546 (IIRIRA), which contains a provision restricting judicial review of the Attorney General’s “decision or action” to “commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.” 8 U.S.C. § 1252(g) (1994 ed., Supp. III). The issue before us is whether, as petitioners contend, this provision deprives the federal courts of jurisdiction over respondents’ suit.

I

The Immigration and Naturalization Service (INS), a division of the Department of Justice, instituted deportation proceedings in 1987 against Bashar Amer, Aiad Barakat, Julie Mungai, Amjad Obeid, Ayman Obeid, Naim Sharif, Khader Hamide, and Michel Shehadeh, all of whom belong to the Popular Front for the Liberation of Palestine (PFLP), a group that the Government characterizes as an international terrorist and communist organization. The INS charged all eight under the McCarran-Walter Act, which, though now repealed, provided at the time for the deportation of aliens who “advocate … world communism.” See 8 U.S.C. § 1251(a)(6)(D), (G)(v), and (H) (1982 ed.). In addition, the INS charged the first six, who were only temporary residents, with routine status violations such as overstaying a visa and failure to maintain student status.1 See 8 U.S.C. § 1251(a)(2) and (a)(9) (1988 ed.).

Almost immediately, the aliens filed suit in District Court, challenging the constitutionality of the anti-communism provisions of the McCarran-Walter Act and seeking declaratory and injunctive relief against the Attorney General, the INS, and various immigration officials in their personal and official capacities. The INS responded by dropping the advocacy-of-communism charges, but it retained the technical violation charges against the six temporary residents and charged Hamide and Shehadeh, who were permanent residents, under a different section of the McCarran-Walter Act, which authorized the deportation of aliens who were members of an organization advocating “the duty, necessity, or propriety of the unlawful assaulting or killing of any [government] officer or officers” and “the unlawful damage, injury, or destruction of property.” See 8 U.S.C. § 1251(a)(6)(F)(ii)—(iii) (1982 ed.).2 INS regional counsel William Odencrantz said at a press conference that the charges had been changed for tactical reasons but the INS was still seeking respondents’ deportation because of their affiliation with the PFLP. See American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1053 (CA9 1995). Respondents amended their complaint to include an allegation that the INS was selectively enforcing immigration laws against them in violation of their First and Fifth Amendment rights.3

Since this suit seeking to prevent the initiation of deportation proceedings was filed–in 1987, during the administration of Attorney General Edwin Meese–it has made four trips through the District Court for the Central District of California and the United States Court of Appeals for the Ninth Circuit. The first two concerned jurisdictional issues not now before us. See Hamide v. United States District Court, No. 87—7249 (CA9, Feb. 24, 1988); American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F.2d 501 (CA9 1991). Then, in 1994, the District Court preliminarily enjoined deportation proceedings against the six temporary residents, holding that they were likely to prove that the INS did not enforce routine status requirements against immigrants who were not members of disfavored terrorist groups and that the possibility of deportation, combined with the chill to their First Amendment rights while the proceedings were pending, constituted irreparable injury. With regard to Hamide and Shehadeh’s claims, however, the District Court granted summary judgment to the federal parties for reasons not pertinent here.

American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045 (CA9 1995), a case that we shall call “AADC I” was the Ninth Circuit’s first merits determination in this case, upholding the injunction as to the six and reversing the District Court with regard to Hamide and Shehadeh. The opinion rejected the Attorney General’s argument that selective-enforcement claims are inappropriate in the immigration context, and her alternative argument that the special statutory-review provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1105a precluded review of such a claim until a deportation order issued. See 70 F.3d, at 1056—1057. The Ninth Circuit remanded the case to the District Court, which entered an injunction in favor of Hamide and Shehadeh and denied the Attorney General’s request that the existing injunction be dissolved in light of new evidence that all respondents participated in fundraising activities of the PFLP.

While the Attorney General’s appeal of this last decision was pending, Congress passed IIRIRA which, inter alia, repealed the old judicial-review scheme set forth in §1105a and instituted a new (and significantly more restrictive) one in 8 U.S.C. §1252. The Attorney General filed motions in both the District Court and Court of Appeals, arguing that §1252(g) deprived them of jurisdiction over respondents’ selective-enforcement claim. The District Court denied the motion, and the Attorney General’s appeal from that denial was consolidated with the appeal already pending in the Ninth Circuit.

It is the judgment and opinion in that appeal which is before us here: American-Arab Anti-Discrimination Committee v. Reno, 119 F.3d 1367 (CA9 1997), which we shall call “AADC II.” It affirmed the existence of jurisdiction under §1252, see id., at 1374, and reaching the merits of the injunctions, again affirmed the District Court, id., at 1374—1376. The Attorney General’s petition for rehearing en banc was denied over the dissent of three judges, 132 F.3d 531 (CA9 1997). The Attorney General sought our review, and we granted certiorari, 524 U.S. ___ (1998).

II

Before enactment of IIRIRA, judicial review of most administrative action under the INA was governed by 8 U.S.C. § 1105a a special statutory-review provision directing that “the sole and exclusive procedure for … the judicial review of all final orders of deportation” shall be that set forth in the Hobbs Act, 28 U.S.C. § 2341 et seq., which gives exclusive jurisdiction to the courts of appeals, see §2342. Much of the Court of Appeals’ analysis in AADC I was devoted to the question whether this pre-IIRIRA provision applied to selective-enforcement claims. Since neither the Immigration Judge nor the Board of Immigration Appeals has authority to hear such claims (a point conceded by the Attorney General in AADC I, see 70 F.3d, at 1055), a challenge to a final order of deportation based upon such a claim would arrive in the court of appeals without the factual development necessary for decision. The Attorney General argued unsuccessfully below that the Hobbs Act permits a court of appeals to remand the case to the agency, see 28 U.S.C. § 2347(c) or transfer it to a district court, see §2347(b)(3) for further factfinding. The Ninth Circuit, believing these options unavailable, concluded that an original district-court action was respondents’ only means of obtaining factual development and thus judicial review of their selective-enforcement claims. Relying on our decision in Cheng Fan Kwok v. INS, 392 U.S. 206 (1968), it held that the District Court could entertain the suit under either its general federal-question jurisdiction, see 28 U.S.C. § 1331 or the general jurisdictional provision of the INA, see 8 U.S.C. § 1329.4

Whether we must delve further into the details of this issue depends upon whether, after the enactment of IIRIRA, §1105a continues to apply to this case. On the surface of things, at least, it does not. Although the general rule set forth in §309(c)(1) of IIRIRA is that the revised procedures for removing aliens, including the judicial-review procedures of §1252, do not apply to aliens who were already in either exclusion or deportation proceedings on IIRIRA’s effective date, see note following 8 U.S.C. § 1101 (1994 ed., Supp. III),5 §306(c)(1) of IIRIRA directs that a single provision, §1252(g), shall apply “without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings.” See note following 8 U.S.C. § 1252 (1994 ed., Supp. III). Section 1252(g) reads as follows:

“(g) Exclusive Jurisdiction

Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.”

This provision seemingly governs here, depriving the federal courts of jurisdiction “[e]xcept as provided in this section.” But whether it is as straightforward as that depends upon the scope of the quoted text. Here, and in the courts below, both petitioners and respondents have treated §1252(g) as covering all or nearly all deportation claims. The Attorney General has characterized it as “a channeling provision, requiring aliens to bring all deportation-related claims in the context of a petition for review of a final order of deportation filed in the court of appeals.” Supplemental Brief for Appellants in No. 96—55929 (CA9), p. 2. Respondents have described it as applying to “most of what INS does.” Corrected Supplemental Brief for Appellees in No. 96—55929 (CA9), p. 7. This broad understanding of §1252(g), combined with IIRIRA’s effective-date provisions, creates an interpretive anomaly. If the jurisdiction-excluding provision of §1252(g) eliminates other sources of jurisdiction in all deportation-related cases, and if the phrase in §1252(g) “[e]xcept as provided in this section” incorporates (as one would suppose) all the other jurisdiction-related provisions of §1252, then §309(c)(1) would be rendered a virtual nullity. To say that there is no jurisdiction in pending INS cases “except as” §1252 provides jurisdiction is simply to say that §1252’s jurisdictional limitations apply to pending cases as well as future cases–which seems hardly what §309(c)(1) is about. If, on the other hand, the phrase “[e]xcept as provided in this section” were (somehow) interpreted not to incorporate the other jurisdictional provisions of §1252–if §1252(g) stood alone, so to speak–judicial review would be foreclosed for all deportation claims in all pending deportation cases, even after entry of a final order.

The Attorney General would have us avoid the horns of this dilemma by interpreting §1252(g)’s phrase “[e]xcept as provided in this section” to mean “except as provided in §1105a.” Because §1105a authorizes review of only final orders, respondents must, she says, wait until their administrative proceedings come to a close and then seek review in a court of appeals. (For reasons mentioned above, the Attorney General of course rejects the Ninth Circuit’s position in AADC I that application of §1105a would leave respondents without a judicial forum because evidence of selective prosecution cannot be introduced into the administrative record.) The obvious difficulty with the Attorney General’s interpretation is that it is impossible to understand how the qualifier in §1252(g), “[e]xcept as provided in this section” (emphasis added), can possibly mean “except as provided in §1105a.” And indeed the Attorney General makes no attempt to explain how this can be, except to observe that what she calls a “literal application” of the statute “would create an anomalous result.” Brief for Petitioners 30, n. 15.

Respondents note this deficiency, but offer an equally implausible means of avoiding the dilemma. Section 309(c)(3) allows the Attorney General to terminate pending deportation proceedings and reinitiate them under §1252.6 They argue that §1252(g) applies only to those pending cases in which the Attorney General has made that election. That way, they claim, the phrase “[e]xcept as provided in this section” can, without producing an anomalous result, be allowed to refer (as it says) to all the rest of §1252. But this approach collides head-on with §306(c)’s prescription that §1252(g) shall apply “without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings.” See note following 8 U.S.C. § 1252 (1994 ed., Supp. III) (emphasis added). (Respondents argue in the alternative, of course, that if the Attorney General is right and §1105a does apply, AADC I is correct that their claims will be effectively unreviewable upon entry of a final order. For this reason, and because they say that habeas review, if still available after IIRIRA,7 will come too late to remedy this First Amendment injury, respondents contend that we must construe §1252(g) not to bar constitutional claims.)

The Ninth Circuit, for its part, accepted the parties’ broad reading of §1252(g) and concluded, reasonably enough, that on that reading Congress could not have meant §1252(g) to stand alone:

“Divorced from all other jurisdictional provisions of IIRIRA, subsection (g) would have a more sweeping impact on cases filed before the statute’s enactment than after that date. Without incorporating any exceptions, the provision appears to cut off federal jurisdiction over all deportation decisions. We do not think that Congress intended such an absurd result.” 119 F.3d, at 1372.

It recognized, however, the existence of the other horn of the dilemma (“that retroactive application of the entire amended version of 8 U.S.C. § 1252 would threaten to render meaningless section 306(c) of IIRIRA,” ibid.), and resolved the difficulty to its satisfaction by concluding that “at least some of the other provisions of section 1252” must be included in subsection (g) “when it applies to pending cases.” Ibid. (emphasis added). One of those provisions, it thought, must be subsection (f), entitled “Limit on Injunctive Relief,” which reads as follows:

“Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of chapter 4 of title II, as amended by [IIRIRA], other than with respect to the application of such provisions to an individual alien against whom proceedings under such chapter have been initiated.”

The Ninth Circuit found in this an affirmative grant of jurisdiction that covered the present case. The Attorney General argued that any such grant of jurisdiction would be limited (and rendered inapplicable to this case) by §1252(b)(9), which provides:

“Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this chapter shall be available only in judicial review of a final order under this section.”

The Ninth Circuit replied that, even if §1252(b)(9) were one of those provisions incorporated into the transitional application of §1252(g), it could not preclude this suit for the same reason AADC I had held that §1105a could not do so–namely, the Court of Appeals’ lack of access to factual findings regarding selective enforcement.

Even respondents scarcely try to defend the Ninth Circuit’s reading of §1252(f) as a jurisdictional grant. By its plain terms, and even by its title, that provision is nothing more or less than a limit on injunctive relief. It prohibits federal courts from granting classwide injunctive relief against the operation of §§1221—1231, but specifies that this ban does not extend to individual cases. To find in this an affirmative grant of jurisdiction is to go beyond what the language will bear.

We think the seeming anomaly that prompted the parties’ strained readings of §1252(g)–and that at least accompanied the Court of Appeals’ strained reading–is a mirage. The parties’ interpretive acrobatics flow from the belief that §306(c)(1) cannot be read to envision a straightforward application of the “[e]xcept as provided in this section” portion of §1252(g), since that would produce in all pending INS cases jurisdictional restrictions identical to those that were contained in IIRIRA anyway. That belief, however, rests on the unexamined assumption that §1252(g) covers the universe of deportation claims–that it is a sort of “zipper” clause that says “no judicial review in deportation cases unless this section provides judicial review.” In fact, what §1252(g) says is much narrower. The provision applies only to three discrete actions that the Attorney General may take: her “decision or action” to “commence proceedings, adjudicate cases, or execute removal orders.” (Emphasis added.) There are of course many other decisions or actions that may be part of the deportation process–such as the decisions 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.

It is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings. Not because Congress is too unpoetic to use synecdoche, but because that literary device is incompatible with the need for precision in legislative drafting. We are aware of no other instance in the United States Code in which language such as this has been used to impose a general jurisdictional limitation; and that those who enacted IIRIRA were familiar with the normal manner of imposing such a limitation is demonstrated by the text of §1252(b)(9), which stands in stark contrast to §1252(g).

It could be argued, perhaps, that §1252(g) is redundant if it channels judicial review of only some decisions and actions, since §1252(b)(9) channels judicial review of all of them anyway. But that is not so, since only §1252(g), and not §1252(b)(9) (except to the extent it is incorporated within §1252(g)), applies to what § 309(c)(1) calls “transitional cases,” that is, cases pending on the effective date of IIRIRA. That alone justifies its existence. It performs the function of categorically excluding from non-final-order judicial review–even as to transitional cases otherwise governed by §1105a rather than the unmistakable “zipper” clause of §1252(b)(9)–certain specified decisions and actions of the INS. In addition, even after all the transitional cases have passed through the system, §1252(g) as we interpret it serves the continuing function of making it clear that those specified decisions and actions, which (as we shall discuss in detail below) some courts had held not to be included within the non-final-order review prohibition of §1105a, are covered by the “zipper” clause of §1252(b)(9). It is rather the Court of Appeals’ and the parties’ interpretation which renders §1252(g) entirely redundant, adding to one “zipper” clause that does not apply to transitional cases, another one of equal scope that does apply to transitional cases. That makes it entirely inexplicable why the transitional provisions of §306(c) refer to §1252(g) instead of §1252(b)(9)–and why §1252(g) exists at all.

There was good reason for Congress to focus special attention upon, and make special provision for, judicial review of the Attorney General’s discrete acts of “commenc[ing] proceedings, adjudicat[ing] cases, [and] execut[ing] removal orders”–which represent the initiation or prosecution of various stages in the deportation process. At each stage the Executive has discretion to abandon the endeavor, and at the time IIRIRA was enacted the INS had been engaging in a regular practice (which had come to be known as “deferred action”) of exercising that discretion for humanitarian reasons or simply for its own convenience.8 As one treatise describes it:

“To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, developed without express statutory authorization, originally was known as nonpriority and is now designated as deferred action. A case may be selected for deferred action treatment at any stage of the administrative process. Approval of deferred action status means that, for the humanitarian reasons described below, no action will thereafter be taken to proceed against an apparently deportable alien, even on grounds normally regarded as aggravated.” 6 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure §72.03[2][h] (1998).

See also Johns v. Department of Justice, 653 F.2d 884, 890—892 (CA5 1981). Since no generous act goes unpunished, however, the INS’s exercise of this discretion opened the door to litigation in instances where the INS chose not to exercise it.

“[I]n each such instance, the determination to withhold or terminate deportation is confined to administrative discretion. . . . Efforts to challenge the refusal to exercise such discretion on behalf of specific aliens sometimes have been favorably considered by the courts, upon contentions that there was selective prosecution in violation of equal protection or due process, such as improper reliance on political considerations, on racial, religious, or nationality discriminations, on arbitrary or unconstitutional criteria, or on other grounds constituting abuse of discretion.” Gordon, Mailman, & Yale-Loehr, supra, §72.03[2][a] (footnotes omitted).

Such litigation was possible because courts read §1105a’s prescription that the Hobbs Act shall be “the sole and exclusive procedure for the judicial review of all final orders of deportation” to be inapplicable to various decisions and actions leading up to or consequent upon final orders of deportation, and relied on other jurisdictional statutes to permit review. See, e.g., Cheng Fan Kwok v. INS, 392 U.S. 206 (1968) (review of refusal to stay deportation); Ramallo v. Reno, Civ. No. 95—01851 (D.D.C., July 23, 1996) (review of execution of removal order), described in and rev’d on other grounds, 114 F.3d 1210 (CADC 1997); AADC I, 70 F.3d 1045 (CA9 1995) (review of commencement of deportation proceedings); Lennon v. INS, 527 F.2d 187, 195 (CA2 1975) (same, dicta). Section 1252(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.9

Of course many provisions of IIRIRA are aimed at protecting the Executive’s discretion from the courts–indeed, that can fairly be said to be the theme of the legislation. See, e.g., 8 U.S.C. § 1252(a)(2)(A) (limiting review of any claim arising from the inspection of aliens arriving in the United States); §1252(a)(2)(B) (barring review of denials of discretionary relief authorized by various statutory provisions); §1252(a)(2)(C) (barring review of final removal orders against criminal aliens); §1252(b)(4)(D) (limiting review of asylum determinations for resident aliens). It is entirely understandable, however, why Congress would want only the discretion-protecting provision of §1252(g) applied even to pending cases: because that provision is specifically directed at the deconstruction, fragmentation, and hence prolongation of removal proceedings.

Our narrow reading of §1252(g) makes sense of the statutory scheme as a whole, for it resolves the supposed tension between §306(c)(1) and §309(c)(1). In cases to which §1252(g) applies, the rest of §1252 is incorporated through the “[e]xcept as provided in this section” clause. This incorporation does not swallow §309(c)(1)’s general rule that §§1252(a)—(f ) do not apply to pending cases, for §1252(g) applies to only a limited subset of deportation claims. Yet it is also faithful to §306(c)(1)’s command that §1252(g) be applied “without limitation” (i.e., including the “[e]xcept as provided” clause) to “claims arising from all past, pending, or future exclusion, deportation, or removal proceedings.”

Respondents’ challenge to the Attorney General’s decision to “commence proceedings” against them falls squarely within §1252(g)–indeed, as we have discussed, the language seems to have been crafted with such a challenge precisely in mind–and nothing elsewhere in §1252 provides for jurisdiction. Cf. §1252(a)(1)(review of final orders); §1252(e)(2) (limited habeas review for excluded aliens); §1252 (e)(3)(A) (limited review of statutes and regulations pertaining to the exclusion of aliens). As we concluded earlier, §1252(f) plainly serves as a limit on injunctive relief rather than a jurisdictional grant.

III

Finally, we must address respondents’ contention that, since the lack of prior factual development for their claim will render the §1252(a)(1) exception to §1252(g) unavailing; since habeas relief will also be unavailable; and since even if one or both were available they would come too late to prevent the “chilling effect” upon their First Amendment rights; the doctrine of constitutional doubt requires us to interpret §1252(g) in such fashion as to permit immediate review of their selective-enforcement claims. We do not believe that the doctrine of constitutional doubt has any application here. As a general matter–and assuredly in the context of claims such as those put forward in the present case–an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.10

Even in the criminal-law field, a selective prosecution claim is a rara avis. Because such claims invade a special province of the Executive–its prosecutorial discretion–we have emphasized that the standard for proving them is particularly demanding, requiring a criminal defendant to introduce “clear evidence” displacing the presumption that a prosecutor has acted lawfully. United States v. Armstrong, 517 U.S. 456, 463—465 (1996). We have said:

“This broad discretion [afforded the Executive] rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy. All of these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute.” Wayte v. United States, 470 U.S. 598, 607—608 (1985).

These concerns are greatly magnified in the deportation context. Regarding, for example, the potential for delay: Whereas in criminal proceedings the consequence of delay is merely to postpone the criminal’s receipt of his just deserts, in deportation proceedings the consequence is to permit and prolong a continuing violation of United States law. Postponing justifiable deportation (in the hope that the alien’s status will change–by, for example, marriage to an American citizen–or simply with the object of extending the alien’s unlawful stay) is often the principal object of resistance to a deportation proceeding, and the additional obstacle of selective-enforcement suits could leave the INS hard pressed to enforce routine status requirements. And as for “chill[ing] law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry”: What will be involved in deportation cases is not merely the disclosure of normal domestic law-enforcement priorities and techniques, but often the disclosure of foreign-policy objectives and (as in this case) foreign-intelligence products and techniques. The Executive should not have to disclose its “real” reasons for deeming nationals of a particular country a special threat–or indeed for simply wishing to antagonize a particular foreign country by focusing on that country’s nationals–and even if it did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy. Moreover, the consideration on the other side of the ledger in deportation cases–the interest of the target in avoiding “selective” treatment–is less compelling than in criminal prosecutions. While the consequences of deportation may assuredly be grave, they are not imposed as a punishment, see Carlson v. Landon, 342 U.S. 524, 537 (1952). In many cases (for six of the eight aliens here) deportation is sought simply because the time of permitted residence in this country has expired, or the activity for which residence was permitted has been completed. Even when deportation is sought because of some act the alien has committed, in principle the alien is not being punished for that act (criminal charges may be available for that separate purpose) but is merely being held to the terms under which he was admitted. And in all cases, deportation is necessary in order to bring to an end an ongoing violation of United States law. The contention that a violation must be allowed to continue because it has been improperly selected is not powerfully appealing.

To resolve the present controversy, we need not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome. Whether or not there be such exceptions, the general rule certainly applies here. When an alien’s continuing presence in this country is in violation of the immigration laws, the Government does not offend the Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity.

* * *

Because 8 U.S.C. § 1252(g) deprives the federal courts of jurisdiction over respondents’ claims, we vacate the judgment of the Ninth Circuit and remand with instructions for it to vacate the judgment of the District Court.

It is so ordered.

Notes

*. *Justice Breyer joins Parts I and II of this opinion.

1. Respondents Barakat and Sharif were subsequently granted legalization and are no longer deportable based on the original status violations. Brief for Petitioners 11, n. 5.

2. When the McCarran-Walter Act was repealed, a new “terrorist activity” provision was added by the Immigration Act of 1990. See 8 U.S.C. § 1227(a)(4)(B) (1994 ed., Supp. III). The INS charged Hamide and Shehadeh under this, but it is unclear whether that was in addition to, or in substitution for, the old McCarran-Walter charges.

3. The amended complaint was styled as an action for “damages and for declaratory and injunctive relief,” but the only monetary relief specifically requested was “costs of suit and attorneys fees.” App. 20, 51.

4. This latter provision was subsequently amended by IIRIRA to make clear that it applies only to actions brought by the United States. See 8 U.S.C. § 1329 (1994 ed., Supp. III).

5. Section 309(c)(1) provides: “(c) Transition for Aliens in Proceedings “(1) General Rule that New Rules Do Not Apply.–Subject to the succeeding provisions of this subsection [§309(a) carves out §306(c) as an exception], in the case of an alien who is in exclusion or deportation proceedings before the title III—A effective date– “(A) the amendments made by this subtitle shall not apply, and “(B) the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments.” 110 Stat. 3009—625.

6. It is unclear why the Attorney General has not exercised this option in this case. Respondents have taken the position that the District Court’s injunction prevents her from doing so. Brief for Respondents 41, n. 38.

7. There is disagreement on this point in the Courts of Appeals. Compare Hose v. INS, 141 F.3d 932, 935 (CA9) (habeas not available), withdrawn and reh’g en banc granted, 161 F.3d 1225 (1998), Richardson v. Reno, 162 F.3d 1338 (CA11 1998) (same), and Yang v. INS, 109 F.3d 1185, 1195 (CA7 1997) (same), with Goncalves v. Reno, 144 F.3d 110, 122 (CA1 1998) (habeas available), and Henderson v. INS, 157 F.3d 106, 117—122 (CA2 1998) (same). See also Magana-Pizano v. INS, 152 F.3d 1213, 1220 (CA9 1998) (elimination of habeas unconstitutional); Ramallo v. Reno, 114 F.3d 1210, 1214 (CADC 1997) (§1252(g) removes statutory habeas but leaves “constitutional” habeas intact).

8. Prior to 1997, deferred-action decisions were governed by internal INS guidelines which considered, inter alia, such factors as the likelihood of ultimately removing the alien, the presence of sympathetic factors that could adversely affect future cases or generate bad publicity for the INS, and whether the alien had violated a provision that had been given high enforcement priority. See 16 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure §242.1 (1998). These were apparently rescinded on June 27, 1997, but there is no indication that the INS has ceased making this sort of determination on a case-by-case basis. See ibid.

9. This history explains why Justice Souter ought not find it “hard to imagine that Congress meant to bar aliens already in proceedings . . . from challenging the commencement of proceedings against them, but to permit the same aliens to challenge, say, the decision of the Attorney General to open an investigation of them or to issue a show cause order.” Post, at 6. It was the acts covered by §1252(g) that had prompted challenges to the Attorney General’s exercise of prosecutorial discretion. We know of no case involving a challenge to “the decision … to open an investigation”–perhaps because such decisions are rarely made public. And we know of no case challenging “the decision … to issue a show cause order” (though that might well be considered a mere specification of the decision to “commence proceedings” which some cases do challenge and which §1252(g) covers). Section 1252(g) was directed against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion. It does not tax the imagination to understand why it focuses upon the stages of administration where those attempts have occurred. But in any event, any challenge to imagination posed by reading §1252(g) as written would be small price to pay for escaping the overwhelming difficulties of Justice Souter’s theory. He makes no effort to explain why his broad, catchall reading of §1252(g) does not render it redundant of §1252(b)(9). And his throw-in-the-towel approach to §306(c)(1), which reads it out of the statute because he finds it diffi-
cult to explain, see post, at 9, not only strains the imagination but ruptures the faculty of reason. We do not think our interpretation “parses [§1252(g)] too finely,” post, at 5; but if it did, we would think that modest fault preferable to the exercise of such a novel power of nullification. Justice Stevens, like Justice Souter, rejects §1252(g)’s explicit limitation to specific steps in the deportation process. He then invokes the conflict with §306(c)(1) that this expansive interpretation creates as justification for concluding that, when §1252(g) uses the word “section,” it “can’t mean what it says,” Green v. Bock Laundry Machine Co., 490 U.S. 504, 511 (1989) (internal quotation marks omitted)–empowering him to declare a “scrivenor’s error” and to change the word “section” to “Act.” Justice Stevens’ approach, like Justice Souter’s, renders §1252(g) redundant of §1252(b)(9). That problem is solved by our more conventional solution: reading both “commence proceedings, adjudicate cases, or execute removal orders” and “section” to mean precisely what they say.

10. Instead of resolving this constitutional question, Justice Ginsburg chooses to resolve the constitutional question whether Congress can exclude the courts from remedying an alleged First Amendment violation with immediate effects, pending the completion of administrative proceedings. It is not clear to us that this is easier to answer than the question we address–as is evident from the fact that in resolving it Justice Ginsburg relies almost exclusively on cases dealing with the quite different question of federal-court intervention in state proceedings. (Even in that area, most of the cases she cites where we did not intervene involved no claim of present injury from the state action–and none involved what we have here: an admission by the Government that the alleged First Amendment activity was the basis for selecting the individuals for adverse action. Cf. Dombrowski v. Pfister, 380 U.S. 479, 487—488, n. 4 (1965).) The one case not involving federal-state relations in fact overrode a congressional requirement for completion of administrative proceedings–even though, unlike here, no immediate harm was apparent. See Oestereich v. Selective Serv. System Local Bd. No. 11, 393 U.S. 233 (1968). Justice Ginsburg counts the case as one for her side on the basis of nothing more substantial than the Court’s characterization of the agency action at issue as “blatantly lawless,” id., at 238. See post, at 3. Nor is it clear that the constitutional question Justice Ginsburg addresses has narrower application and effect than the one we resolve. Our holding generally deprives deportable aliens of the defense of selective prosecution. Hers allows all citizens and resident aliens to be deprived of constitutional rights (at least where the deprivation is not “blatantly lawless”) pending the completion of agency proceedings. Finally, Justice Ginsburg acknowledges that her constitutional conclusion might be different if “a court of appeals reviewing final orders of removal against respondents could not consider their selective enforcement claims.” Post, at 4. But she never establishes that a court of appeals can consider their selective enforcement claims, though she expresses “confiden[ce]” (despite the Ninth Circuit’s holding to the contrary) that that would be the outcome. Post, at 5, n. 2. How well-founded that confidence is may be assessed by considering the first and most substantial option upon which it is based, namely, “the Attorney General’s position that the reviewing court of appeals may transfer a case to a district court . . . and counsel’s assurance at oral argument that petitioners will adhere to that position . . . .” Post, at 5. What petitioners primarily rely upon for this concession is the provision of the Hobbs Act that authorizes remand to the agency or transfer to a district court “[w]hen the agency has not held a hearing.” 28 U.S.C. § 2347(b). It is not at all clear that this should be interpreted to mean “when the agency’s hearing has not addressed the particular point at issue”–especially since that situation is specifically covered by §2347(c) (providing for remand in such circumstances), which the new amendments explicitly render inapplicable to deportation cases, see 8 U.S.C. § 1252(a)(1) (1994 ed., Supp. III). Petitioners’ position is cast further in doubt by the fact that the Hobbs Act remedy for failure to hold a hearing “required by law” is not the transfer which petitioners assert, but remand, see 28 U.S.C. § 2347(b)(1). Of course petitioners’ promise not to quibble over this transfer point is of no value, since the point goes to jurisdiction and must be raised by the District Court sua sponte. It is quite possible, therefore, that what Justice Ginsburg’s approach would ultimately accomplish in this litigation is requiring us to address both the constitutional issue she now addresses and (upon termination of the administrative proceedings) the constitutional issue we now resolve. We think it preferable to resolve only the one (and we think narrower) issue at once.

“Before September 11 we had almost succeeded in eliminating racial profiling, After September 11, it’s a whole new world,” says Michel Shehadeh of the American-Arab Anti-Discrimination Committee (ADC) in the western region. “One thousand Arab Americans have already been detained and we don’t know who they are or what charges have been brought against them.”

Of those 1,147 Arabs and Arab Americans who have been detained, exactly zero have been charged with any formal offense in connection to the events of September 11. This, however, has not slowed the pace of the detentions. What it has done is give moral, political, and for the time being, legal sanction to stop, search, and detain anyone who appears to be Arab.

However, she also reminds us that few polls have been taken since the week of the attack, and wonders if those numbers have changed after some of the initial shock and fear subsided.

New Terrain of Racial Profiling

What gave the Driving While Black and Brown campaign immediate resonance with many supporters was that it sought to address the institutional aspects of racism. The goal wasn’t to fire individual police officers for unfairly targeting motorists because of their race, but rather to put an end to a whole system of law enforcement based on racial stereotypes. DWB’s success came in part because of its narrow focus on racial profiling while driving. This was a strategic decision to address the way that race was used by law enforcement ostensibly to fight the war on drugs. The war on terrorism is creating a similar dynamic. “The war rhetoric is giving license to law enforcement to engage in racial profiling, just as it did in the war on drugs. Both wars create a ‘by any means necessary’ attitude that encourages law enforcement to target people based on race,” says Alexander. She also recognizes the need to consider broadening the DWB focus in light of the recent increase in profiling of those who appear to be Arab. “Many Arab American organizations were not involved in the fight against racial profiling as we defined it before September 11 because we were not addressing the form of profiling that effects those communities.”

Racial Profiling Research Paper

Racial Profiling: Useful or Harmful? When enforcers of the law go about their jobs they use many techniques to decrease their suspect pools, one of the most controversial techniques officers use is racial profiling. People believe racial profiling causes police distrust and at the same time encourages “fishing expeditions”. When should officers be allowed to use racial profiling, and when shouldn’t they? The most common use of racial profiling is in traffic stops, but this is one area racial profiling…

Essay on Racial Profiling

Hypothesis/Outline Hypothesis: The events of September 11th has caused racial profiling, a practice that was vilified by many just months ago, to become a common and accepted practice used by the government, airline officials, police agencies, and the American public. Profiling has also become a necessary tool used to prevent further terrorist attacks on the United States. Map of the Territory: I. Racial profiling is the practice of “selecting someone for investigation or stronger action…

Racial Profiling

According to Leach (n.d.)., “The practice of racial profiling has no place in law enforcement. It is an activity that undermines the public trust vital for an effective community policing organization.” A comprehensive change to organizational culture and policy can help to prevent the problems associated with racial profiling. The problems associated with racial profiling include the undermining of trust on the part of the community. Mistrust undermines the effort of police officers to serve and…

Racial Profiling Essay

Airport racial profiling, Osama Bin Laden, Middle East Asian, Muslims, 9/11, metal detectors, racial profiling and hijacking” Do these words and phrases sound familiar? It is likely most of us have been at least tried once in our lifetime going through the security checking process at the airport. Do people find this inconvenient or it is beneficial to everyone’s safety? However, this security checking process is not too convenient for particular targeted group, which are the Muslims. In this…

Racial Profiling in Different Ways

Racial Profiling has been used by law enforcement officials from early 60’s during the civil rights movement. The term “racial profiling” which was introduced to criticize abusive police practices against people of different race, ethnicity or national origin. One must assess how to understand the practice, and how to keep it distinct from other issues. Racial profiling is defined as “any police-initiated action that relies on the race, ethnicity, or national origin, rather than the behavior of an…

Terrorism and Racial Profiling Essay

“Before September 11 we had almost succeeded in eliminating racial profiling, After September 11, it’s a whole new world,” says Michel Shehadeh of the American-Arab Anti-Discrimination Committee (ADC) in the western region. “One thousand Arab Americans have already been detained and we don’t know who they are or what charges have been brought against them.” Of those 1,147 Arabs and Arab Americans who have been detained, exactly zero have been charged with any formal offense in connection…

Last week, a federal immigration judge dismissed the government’s case against two Palestinian men arrested with six other residents because of their alleged connections to Palestinian terrorists 20 years ago.

Judge Einhorn, of the Los Angeles Immigration Court, executed an order to terminate the deportation proceedings against Khader Hamide and Michel Shehadeh, long time residents of the United States.

In his decision, Einhorn said the government’s conduct in the case was “an embarrassment to the rule of law” that left “a festering wound on” Hamide and Shehadeh, who have been fighting this legal battle for 20 years.

Well, by now you may ask, “Why in the world should I care about this?” Well, the good news is you don’t really have to worry about it until you or your family is in that situation. On second thought, maybe you should care about it, because the government has been using your money for the past 20 years trying to deport two men who have done nothing wrong.

The ruling is a clear recognition by the court of the unjust suffering of the respondents and their families for more than 20 years, not to mention the complete falsehood of the allegations that Hamide and Shehadeh provided support to terrorist groups, material or otherwise.

None of the L.A. eight were ever charged with a crime, either, and the federal court repeatedly held that their activities were protected by the First Amendment. Nonetheless, the Department of Justice relentlessly pursued deportation for Shehadeh and Hamide. When provisions of the McCarthy era McCarran-Walter act were ruled unconstitutional in 1990, the government retroactively applied the Immigration Act of 1990 to continue the effort to deport them. The government once again brought similar charges against the two men under provisions of the Patriot Act of 2001.

I hope by now you asked the question, “But why would our government do such a thing?” Well, here is a hint: Both Hamide and Shehadeh were politically active and lawfully participated in demonstrations, helped Palestinians with human rights and medical needs and raised money for hospitals, youth clubs and day-care centers.

Since the 20-years-long attempt to deport these two individuals for political activities that are clearly protected rights if Hamide and Shehade were U.S. citizens failed, let’s hope that the government will now move on and put some effort on real terrorists, such as Osama bin Laden and suicide bombers, and not political activists who disagree with them.

At some point in our lives we must start questioning things that authorities do in our society, and I suggest we start that soon, or else we will all be charged with something. Although I don’t know what they might be, I am sure the U.S. Department of Justice and the U.S. Department of Homeland Security are working very hard to draft those charges.

FOR two decades, the U.S. government has been trying to deport two Palestinians living in Southern California — middle-aged men who have been lawful permanent residents of this country for three decades. The Department of Homeland Security, which must soon make a decision on the matter, should drop the case and allow Khader Hamide and Michel Shehadeh to continue to live their American lives.

The two men are the remnant, for legal purposes, of the “L.A. 8.” That was the term used to describe seven Palestinian men and a Kenyan woman who were arrested at gunpoint at their homes in 1987 for their alleged association with the Popular Front for the Liberation of Palestine, or PFLP, a Marxist-Leninist faction of the Palestine Liberation Organization. The government began proceedings to deport them on the theory that the faction advocated “world communism through written or printed publications.”

Hamide and Shehadeh were originally slated for deportation under the McCarran-Walter Act, a noxious Cold War law that was substantially overturned in 1988. Undaunted, the government filed charges against Hamide and Shehadeh, accusing them of ties with “an organization that advocates or teaches the duty or necessity or propriety of the unlawful assaulting or killing of government officials.” The deportation effort was later justified under a provision of the Patriot Act enacted after 9/11.

Throughout the tortuous litigation, the government argued that the L.A. 8 provided support that found its way to the PFLP and its terrorist activities, while the members of the L.A. 8 insisted that they raised funds only for the building of hospitals and other humanitarian purposes.

In terminating the deportation proceedings last month, federal immigration Judge Bruce J. Einhorn embraced neither of these conflicting narratives. Instead, he cited the government’s refusal to comply with his order seeking any evidence that had the potential to exonerate the men and emphasized that the case had lingered so long as to violate due process. He referred to the case as “a festering wound” on Hamide and Shehadeh and said it was “an embarrassment to the rule of law.”

The judge’s prose may be purple, but his conclusion is correct. Hamide and Shehadeh are well-integrated members of the community. They have not been convicted of any crime. The government’s unrelenting effort to deport them smacks of bureaucratic face-saving. Einhorn has offered the government a graceful exit from this litigation — and the government should take it.Los Angeles TimesEditorial

Patriot Act Used In 16-Year-Old Deportation Case
Administration Revives 1987 Effort

By R. Jeffrey Smith
Washington Post Staff Writer
Tuesday, September 23, 2003; Page A03

The Bush administration has decided to pursue a 16-year-old effort to deport two Palestinian activists who as students distributed magazines and raised funds for a group the government now considers a terrorist organization, despite several court rulings that the deportations are unconstitutional because the men were not involved in terrorist activity.

The case, which has long had a high profile among Palestinian Americans, could pose a new judicial test of a controversial provision in the Patriot Act, passed in 2001. The provision prohibits supplying material support for organizations the government deems “terrorist,” even without evidence of a link to specific terrorist acts.

At the time of their initial arrests in 1987, the activists, Khader Hamide and Michel Shehadeh, were allegedly affiliated with the Popular Front for the Liberation of Palestine, a Marxist group that has advocated an independent Palestinian state and has been involved in various acts of terrorism.

The government alleges that Hamide and Shehadeh helped raise funds for the PFLP in the mid-1980s at California churches, a Scottish Rite temple and an auditorium owned by the Veterans of Foreign Wars and distributed magazines for the group.

Hamide and Shehadeh deny any affiliation with the PFLP and say they are being punished for speaking on behalf of the Palestinian cause. Hamide is now a coffee salesman and Shehadeh is a restaurant manager; both live with their families in California and say they have no connection to terrorism.

“I don’t know any other home,” Shehadeh said in a telephone interview. “This is a political case” being pursued because of bureaucratic inertia, he said. “We were never charged with doing anything ourselves.”

In seeking the deportation in 1987 of Hamide, Shehadeh and six other Palestinian immigrants allegedly associated with the PFLP, the Reagan administration’s Justice Department invoked a provision of the Cold War-era McCarran-Walter Act, which barred membership in communist groups. But a lawsuit filed by the so-called L.A. 8 led a federal appeals court to declare the law an unconstitutional infringement of free speech, and Congress repealed it in 1990.

The deportation cases nonetheless continued to churn through the courts because Congress’s action did not affect pending disputes. Then-FBI Director William Webster conceded in 1987 that none of the eight had engaged in terrorist activity and that they would not have been arrested if they were U.S. citizens. Civil liberties groups charged that the government was wrongly excluding the immigrants from traditional protections of free speech and association.

Six of the cases were ultimately deemed minor technical violations. In January, the Bush administration was given a summer deadline for declaring whether it would still seek to invoke the McCarran Act. Last week, the Department of Homeland Security confirmed that it would pursue the deportations but drew on the language of the Patriot Act.

A department spokesman yesterday declined to elaborate.

“This has always been a case of guilt by association, and nothing more,” said Georgetown University Law professor David Cole, who has been their attorney for more than a decade.

© 2003 The Washington Post Company

Revisiting the Los Angeles Eight Case

In the early morning hours of January 26, 1987, federal agents across Los Angeles charged into the homes of seven men and one woman and led them away in handcuffs. More than 100 law enforcement officers—city, state and federal—were involved. “War on Terrorism Hits LA,” read the Los Angeles Herald-Examiner.

The defendants were all pro-Palestinian activists, but it wasn’t clear what they’d been arrested for. Soon the government conceded it would not introduce criminal charges, instead seeking to deport the group by alleging material support to a communist organization—an ancient Red Scare statute that would soon be declared unconstitutional. The case quickly became a mess, and in the end, 20 years of legal wrangling would pass before a judge would call the case “an embarrassment to the rule of law.” But in the first days of the defense, the lawyers for the men who would become known as the LA Eight were turning over a greater puzzle: why their clients had been targeted in the first place.

And then the document arrived.

It was a small manila envelope. No return address. No note. Inside, a typewritten government memo, barely legible. The package had been sent to one of the attorneys for the LA Eight, who rushed it to Marc Van Der Hout, his co-counsel. Van Der Hout was bewildered as he skimmed through it.

The 40-page memo described a government contingency plan for rounding up thousands of legal alien residents of eight specified nationalities: Libya, Iran, Syria, Lebanon, Tunisia, Algeria, Jordan and Morocco. Emergency legal measures would be deployed—rescinding the right to bond, claiming the privilege of confidential evidence, excluding the public from deportation hearings, among others. In its final pages, buried in a glaze of bureaucratese, the memo struck its darkest note: A procedure to detain and intern thousands of aliens while they awaited what would presumably become a mass deportation. Van Der Hout read the final pages carefully. The details conjured a vivid image of a massive detainment facility: 100 outdoor acres in the backwoods of Louisiana, replete with specifications for tents and fencing materials, cot measurements and plumbing requirements.

Four decades had passed since the U.S. closed its World War II-era internment camps, a disgraceful chapter when, without cause, the federal government forcibly relocated 120,000 Japanese Americans, imprisoning them across an archipelago of camps pocking the American South and West. Now, a working group in the Reagan administration was grasping for a similar-sounding measure. In 1987, the targets would not be Japanese Americans, but Middle Eastern aliens, lawful U.S. residents without the protection of green cards.

Four decades had passed since the U.S. closed its internment camps. Now, a working group in the Reagan administration was grasping for a similar-sounding measure.

This time, the targets would not be Japanese Americans, but Middle Eastern aliens.

This wasn’t the far-fetched fever dream of an INS hothead; it was the product of careful deliberation, a process that had begun months earlier in the White House. In 1985, President Ronald Reagan, jarred by images of Americans killed on foreign soil at the hands of terrorists, sought a more aggressive tack to an emerging threat. It was the beginning of a shift from the twilight calm of the Cold War to a hotter, all-encompassing federal fixation on terrorism.

Large swaths of the federal government would be retrofitted with a counterterrorism agenda—from the Office of Management and Budget to the Department of Transportation. High on the list was the country’s immigration apparatus—or, as a phalanx of federal reformers began soon to call it, the first line of terrorism defense.

The document received by the attorneys for the LA Eight had originated from within the Immigration and Naturalization Service, then a division of the Department of Justice. The memo was hatched by Group IV of the INS’ Alien Border Control Committee. Van Der Hout had been in immigration law for years, but had never heard of it. In interviews 30 years later, the members of the ABC Committee insist that the document was not seriously considered—a bureaucratic fantasy with few meaningful ramifications—even as they defended the rationale that produced it.

In 1987, after the memo’s existence was briefly exposed, the ABC Committee was promptly terminated, the subgroup and the plan abandoned. But the ideas borne of the anxieties of the ’80s have gained new currency in the years since. In the wake of 9/11, America began detaining foreign nationals deemed threats to American safety—problematic though the legal grounds might be—in Guantanamo Bay. And with every fresh attack, at home or abroad, our demand for aggressive prosecution mounts. It is this fear that has underpinned the platform of Donald Trump—his promises of banning Muslims, blocking travel from countries compromised by terrorism and removing millions in a Herculean deportation scheme. Trump, however unwittingly, has drawn from much the same playbook as the plan once advanced by the ABC committee.

Old ideas never really die; they lie dormant in a frigid file cabinet, or buried in the Congressional Record.

The existence of the committee and its long-forgotten work illustrates a truism of all government policy: old ideas never really die; they lie dormant in a frigid file cabinet, or buried in the Congressional Record, ready to bloom in a moment of political exigency.

One day recently, over lunch at a Virginia mega-mall, I placed the memo beside the plate of one former member of Group IV of the ABC Committee. How did it come to be? I asked him. He was pleasant, but indignant. The government is loaded with contingency plans like you wouldn’t believe, he told me. Best to stop worrying. “You said the department had to scrap this after it was leaked?” he asked. “If they withdrew this in 1986, they probably had something operational by 1992,” he continued. “They’d be foolish not to.”

In the late spring of 1986, Tom Walters sat in his office at the INS, scrawling out the details of a plan he barely understood. Days earlier, he had received an unusual directive from his superior Executive Commissioner, handed down to the Border Patrol: We need you to draw up a plan.

Since Walters had arrived at the INS headquarters in 1984 to oversee the formation of a Border Patrol tactical unit, he had already been asked to draw up a number of contingency plans. As far as he knew, none had come to fruition; INS had a habit of devising plans and shoving them into storage, rarely informing the agencies whose cooperation would be needed to execute them. But as he bulleted the details of this plan, Walters couldn’t recall a scenario as grandiose as the one he was tasked with writing. “This is an emergency response for dedicating border patrol resources,” Walters recalls being told by an Executive Commissioner who handed down the assignment. He pulled an old military plan, literally, off the shelf, outlining the use of an INS Detention and Deportation facility in Oakdale, Louisiana. Walters wrote out his adjustments in longhand, and handed them to a secretary to type up.

The ABC Committee had been authorized in June 1986, by the Department of Justice, but it was founded in spirit a year earlier, in June 1985 in the Oval Office. Underneath a patina of calm and domestic stability, Americans in the 1980s began to witness a creeping trend of political terrorism: 17 Americans killed by Hezbollah in Lebanon, a suicide truck bomber killed 241 at a U.S. Marines barracks in Beirut, more bombings in Kuwait, Athens and Madrid. Then, in June 1985, two gun-wielding Lebanese men affiliated with Hezbollah hijacked a San Diego-bound TWA 847, bearing 147 passengers and crew. The hostage crisis lasted 17 days; by its end, hijackers had murdered a U.S. Navy Petty Officer, Robert Dean Stethem, and tossed his body onto the tarmac.

“It was the first time the U.S. felt itself being actually targeted, even though most of the attacks occurred overseas,” says Buck Revell, then an Assistant Director of Investigations at the FBI. President Reagan was especially troubled by the murder of Stethem, and felt pressure to respond. In July, he signed a security directive to convene a cabinet-level task force on combating terrorism. The Task Force devolved into a working group of senior agency officials, charged with drawing up recommendations.

Almost immediately, they seized on immigration law as an untapped weapon against terrorism. “INS didn’t view themselves as part of the national security establishment,” says Revell, who served on the working group. During weekly meetings in a spacious conference room inside the Old Executive Office building, members of the working group became convinced that INS could be retooled to closely track incoming and outgoing aliens, receive intelligence shared by law enforcement, and speed up deportation proceedings.

Frustration with the glacial pace of deportations was informed by the Iranian Hostage Crisis, an event that haunted everyone in the working group. In 1979, after Iranian revolutionaries overtook the U.S. Embassy in Tehran, the Carter administration had mobilized INS to register the 75,000 Iranian college students in the United States—an undertaking mentioned throughout the memo that the ABC committee would later produce. In November and December of ’79, according to agency accounts, INS agents piled into cars and rolled into college towns. They met lines of Iranian students that stretched out cafeteria doors, waiting to register their names with INS officials seated behind fold-out tables. Students who evaded Carter’s order to register were detained and, overwhelmingly, released on bond, a setback that infuriated INS officials. Of the 60,000 Iranian students registered, 430 were deported. The revelation that INS lacked a method to track non-immigrant aliens other than road trips and registries that relied on the aliens showing up to be counted earned the agency the scorn of Congress.

If another mass registration were at hand, the working group would avoid the Iranian debacle. On January 20, 1986, President Reagan adopted the Task Force’s 44 recommendations in full, half of which still remain classified.

In November, six months after he wrote the plan for the Border Patrol, Tom Walters was summoned to the INS Commissioner’s windowless conference room, the nicest in the department, on the seventh floor of the Chester Arthur building in Washington. Around the dimly-lit conference table sat 13 low-level representatives from four federal agencies: The Justice Department, Customs, the U.S. Marshals and the FBI. At the head of the table sat the chair of committee, a young Walter “Dan” Cadman. Cadman had been tapped to lead Group IV of the Alien and Border Control Committee, the ABC subgroup that dealt with contingency plans. “Being a young and fairly new guy in the Central Office with little seniority, I got tagged because no one else wanted to sit around on what seemed to them to be a bureaucratic exercise,” Cadman told Politico Magazine via email.

Days in advance of the first meeting, the ABC committee’s members separately received the memo, titled “Alien Terrorists and Undesirables: A Contingency Plan,” the same document that would later leak to Van Der Hout and his co-counsel Leonard Weinglass. As the discussion began, Walters found himself in disbelief—not at the moral content of the meeting, but its technocratic scale. “I’d best characterize my reaction as shock,” he told me. Walters, like everyone else at the table, had never thought of INS as a terrorist-fighting organization; it was a domestic agency with a domestic charge. In its doling out of visas, perennial underfunding and quotidian attempts to weed out fraud at the border, INS shared more in common with the Social Security Administration than the Navy’s SEAL Team Six.

For the first hour, the men discussed the mission their superiors had given them: How to make INS a high-functioning weapon in the Reagan administration’s new war on terror. At the conference table in the Chester Arthur building, much of the fortnightly meetings were spent explaining definitions and concepts. Little time was devoted to discussing the merits of internment.

The memo begins with its summary recommendation: Banning incoming aliens from countries compromised by terrorism; deporting non-immigrant aliens through a section of the Immigration and Nationality Act relating to destruction of government property; rushing through new changes to the Code of Federal Regulations, and circumventing the typical rulemaking procedure to do so; expanding the legal definitions of international terrorism; and calling for intelligence-sharing to facilitate the deportations.

The INS’ multi-pronged proposals left little to the imagination, offering two options: a “general registry” and “limited targeting.” In its general registry scenario, the State Department would “invalidate the visas of all nonimmigrants” of the targeted nationalities, “using that as the first step to initiate a wholesale registry and processing procedure.” In its limited targeting scenario, the Investigations Division imagined a series of eight steps to expedite the deportation of the targeted nationalities. One was an executive order, requiring the FBI and CIA to share data with INS to locate alien undesirables and suspected terrorists. Another expanded the legal definition of international terrorism as a deportable offense; to speed the process, the measure would circumvent “proposed rule-making procedures, as a matter of national security.” The INS recommended holding aliens without bond, excluding the public from the deportation proceedings and convincing immigration judges to agree to those terms by referencing classified evidence.

A final note detailed “other program recommendations.” They included “summary exclusion” in the form of an executive order, imagining a president who suspended entry to “any class of aliens whose presence … was deemed detrimental to the public safety.” And it recommended a holding facility in Oakdale, Louisiana, a camp that could “house and isolate” up to 5,000 aliens.

It requested $2 million to develop the 100 grassy acres adjacent to the Oakdale facility with tents and fence materials, which would allow the site to be active on four weeks’ notice. “Community is receptive and has agreed to the location,” the section notes.

Toward the end of the document, an enigmatic military plan makes an appearance, punctuating the clipped prose and smeared typeface with a conspicuous ellipse: “Upon identification and activation of a military location,” it reads, “most of the various components of the South Florida Plan would then be operative.”

It’s easier to introduce these things if they’re targeted at foreign nationals than when they’re targeted at Americans. The government can say, ‘we’re talking away their liberties for your security.’”

The South Florida Plan, according to intelligence officials and sources interviewed by Politico Magazine, was a little-known contingency plan for an emergency scenario inspired the 1980 Mariel Boatlift, when 125,000 Cubans fled the island in a months-long flotilla. From April through October, Cuban refugees, many of them felons and mentally ill prisoners, poured onto the beaches of southern Florida and the Gulf states. The immigration system groaned under the weight of a mass migration crisis, as prisons swelled and the INS was plunged into chaos.

The chaos in South Florida gave officials at the Department of Justice pause. Mariel had jettisoned a sliver of Cuban society. What would happen if the Castro regime collapsed? According to officials at the Justice and Defense Departments, to handle that exodus would require converting some of the largest military installations in the South into mass alien detainment centers, at least until the influx could be stemmed.

Willingly or not, Group IV of the ABC was now contemplating triggering the South Florida Plan. The ABC memo is never clear on the exact number of people targeted for internment and deportation: A Border Patrol preface identifies a target number “considerably less” than 10,000, while the Oakdale facility’s upper limit is proposed at 5,000. But buried in the memo, without preface or explanation, is a page that tallies 230,000 alien U.S. residents from eight targeted countries in the Middle East and North Africa. If internment and deportation proceedings were going to approach anything on that scale, the South Florida Plan was a viable option.

Dan Cadman remembers groaning at the sight of Walters’ memo in November 1986, when the ABC Committee first met. In Walters’ retelling, he simply delivered the memo he was instructed to. Through the group’s four meetings during November, December and January, little disagreement was aired.

“Our thought in [Investigations] was that once the other members had a chance to read the whole thing and come back together, collectively the group could kick that appendix to the curb in going forward with a final document,” Cadman told Politico Magazine in an email. “That didn’t happen because someone in the group—probably equally dismayed at the appendix—leaked the document.”

None of the men would discover the source of the leak—who at the table had sent the manila envelope to Weinglass. Usually, at the end of each meeting, the men would discuss the date they would reconvene. But at the last meeting, days before the leak, Cadman said the meeting time was TBD.

“Nobody called back,” says Walters.

As he looked over the leaked document in Los Angeles, Marc Van Der Hout was stunned.

The memo’s language lacks the circumspection of policy, barreling through one legal recommendation after another in a blaze of technocratic procedure. Yet at times, a glint of recognition shines through, moments in which the memo seems possessed of an awareness of its own transgressions. The memo notes that an attempt to register en masse lawful aliens of mostly Arab countries is “replete with problems in that it indiscriminately lumps together individuals of widely differing political opinions solely on the basis of nationality.” It quickly corrects: “There are, however, some advantages to the initiation of a registry”—one of which was the “benefit of being tested in administrative tribunals.”

Van Der Hout and a co-counsel, David Cole, now a professor at Georgetown University Law Center, became convinced that the memo was an uncanny outline of the government’s position and plan to deport the LA Eight—the “test case” which the document seemed to imply.

“They picked for arrest and deportation eight people who were essentially alien activists,” remembers Cole. “They sought to use classified evidence to detain them. [The memo] felt like a kind of blueprint for the case against our clients.”

The attorneys for the LA Eight were not the only ones to receive the leaked document. So did Stephen Engelberg, a reporter for the New York Times. His story on February 1, 1987, brought intense pressure on the INS. Beset by reporters at a news conference, William Odencrantz, a regional counsel for INS, was asked about the similarities between the case and the strategies described in the memo, and the seemingly political nature of the charges. “To use a football analogy,” Odencrantz told them, “we don’t care how we score our touchdown, by pass or run. We just want to get them out of the country.”

It was an astonishing confession. Cole, Weinglass and Van Der Hout launched a legal counterattack with the help of the ACLU. If they could prove the government had targeted their clients for their political beliefs and not due to ostensible unlawful behavior, they might get the case dismissed. Bringing their case to a district court, they won—though the decision would be overturned by the Supreme Court in 1998.

But the battle over the document roared on in the court of public opinion. And in Los Angeles, the leak of a federal plan to target legal U.S. residents based on their nationality caught the attention of another group: The Japanese American Citizens League.

The organization, whose members carried the memory of the internment camps, came to the public aid of the LA Eight, attending press conferences and distributing flyers in their defense. That is likely how the ABC memo passed into the possession of Norman Mineta, a California Democrat who represented the San Jose/Silicon Valley region in the U.S. House.

Mineta, now 84, can’t remember who first handed him the document. But he remembers the shock of reading it, a somber recognition.

In 1942, as a 6-year-old, Mineta and his family joined the roughly 120,000 Japanese Americans who were detained and forced from their homes and behind the barbed wire of internment camps hundreds of miles away. Mineta’s family was held at the Heart Mountain internment camp in Cody, Wyoming. Nationally, roughly two-thirds of those interned were citizens. The rest were aliens legally residing in the U.S.

At the time he received a copy of the ABC memo early in 1987, Congressman Mineta had been leading a charge for the Civil Liberties Act of 1987. The proposal would grant federal reparations to the survivors and families of those Japanese Americans interned during the 1940s. Speaking before a House subcommittee in April of that year, Mineta introduced the ABC memo into the Congressional Record, where Politico Magazine first found it.

Speaking from his living room in Annapolis, Mineta described reading the memo for the first time. He skimmed past the disembodied tone and reams of raw figures. His eyes then stopped on a single detail: the plan’s specification for the number of cots. “All I could think of was in 1942, having been forcibly evacuated and interned, we had to make our own mattresses,” Mineta says. “When we got off the train, the first thing we had to do was get this mattress ticking with hay and straw. And I’m reading this report, thousands of mattresses, cots, to be able to accommodate the people they had apprehended.”

Mineta’s testimony drove the final stake into the heart of the ABC.

“I believe it is vital to bring to the subcommittee’s attention that in recent months, a Department of Justice task force has proposed as legal and appropriate the mass round-up and incarceration of certain nationalities for vague national security reasons,” Mineta told the House subcommittee in his prepared statement. He quoted Solicitor General Charles Fried, who had told the Supreme Court earlier that year that the Japanese internment camps represented a “racial caste which was our shame.” “So this bill is not just about the past,” Mineta continued, referring to the reparations legislation. “It is about today and the future as well.”

Mineta skimmed past the memo’s disembodied tone and reams of raw figures. His eyes stopped on a single detail: the number of cots.

Between 1987, when he entered the plan into the Congressional Record and preserved it for history, and when we spoke last month, Mineta says he hadn’t thought about the ABC memo—with one exception.

During the September 11th attacks, Mineta, then the Secretary of Transportation, ordered the FAA to ground every air carrier in the country. As a cabinet member in the line of presidential succession, he spent much of the next two days in a bunker. On the morning of September 13, the air in New York, Arlington, and Shanksville, Penn., still thick with smoke and ash, Mineta joined President Bush for a summit with the leadership of the House and Senate.

Toward the end of the meeting, Mineta recalls, House Democratic Whip David Bonior of Michigan expressed a fear to Bush: Our Muslim population in metro Detroit, Bonior told the president, is worried about rumors of targeting and round-ups. “David, you’re absolutely correct,” Bush replied. “We’re equally concerned about all that rhetoric.” The president extended a plaintive hand toward Mineta. “We don’t want to have happen today what happened to Norm in 1942.”

***

Fifteen years after President Bush implored the country not to relent to vengeful rhetoric, the country finds itself in familiar waters. The public debate is rife with talk of immigration bans, loyalty tests, intensified surveillance, deportations. Such ancillary ideas revive the one that never really disappears; it returns, it seems, every 30 or 40 years—from the Palmer Raids of 1919 to the camps of World War II, from the anxiety of the mid-1980s to the fear inherent in the 2016 race. But the pernicious resilience of mass internment became more clear when speaking to the men whose meetings and memos kept it alive.

In interviews over the past several months with Politico Magazine, former members of the ABC Committee struck a note of indignant stoicism about the 1986 memo—a brittle shell, earned from years toiling in the most political branch of federal policy. Didn’t I know anything about immigration, the men asked me. Didn’t I know how complex a time this was?

Walters, for his part, exuded an equanimity and glow in his post-retirement, despite the scrutiny he sensed a story about the document would bring him. I asked whether he thought the emotion from immigrant activist groups was warranted.

“I understand the view of the civil libertarian types on this, and they had some legitimate concerns,” Walters told me. But, he seemed to suggest, the group that was under siege was the INS. “The immigration service at the time, especially at the Border Patrol side, was feeling pretty overwhelmed and under-supported,” Walters said. A fantastical government agenda, handed down from on-high, was the last thing the Border Patrol wanted. But the the government gets the contingency plans it asks for.

One retired ABC member, who spoke to Politico Magazine on the condition of anonymity, came close to insisting the document wasn’t far off base. We met over lunch at an Italian chain restaurant in Virginia, where I propped the document astride his veal parmesan.

“Let’s be realistic,” he said. “If I’ve been told to watch out for bad Iranians or whatever—I do some work and quickly determine there’s 3,000 of these people in my county. So I’m going to go out and I’m going to follow 3,000 people? Oh, so I’ll start alphabetically?”

“Believe it or not, everything is not roses,” he said. “And ultimately, it takes force in order to enforce the laws.”

When I asked him about Mineta’s comments about the internment camps, he cocked his head and shot me a plaintive smirk. “Don’t you think that’s a bit hyperbolic?” he said. “If you really want to see genocide in the United States, go back and look to see what happened to the American Indian in California. That’s 1849.” He blinked, considering this for a moment. “Now, the Japanese were rounded up on the entire West coast. You don’t know. You’ve just been attacked—Hawaii! If the Japanese had sent troops, they would have had Hawaii.” He shakes his head, trailing off in a murmur. “We were wiped out. Very few ships got out.”

When I asked him about Mineta’s comments about the internment camps, he cocked his head and shot me a plaintive smirk.

“Don’t you think that’s a bit hyperbolic?” he said.

Most former ABC Committee members made some gesture toward disavowal, an important recognition that the document was not good policy. At the heart of this angst was the I-word: “It smacks of the dark period of U.S. history involving internment of Japanese Americans,” Cadman, the ABC chairman, wrote in an email. “What I regret is that because the project was killed and the group was disbanded, we didn’t get the chance to see the appendix officially disavowed as the work of the group progressed, however slowly that work was going.”

Still, the men of ABC retain a sense of common cause. They agree, for instance, that other branches of government—and civilians—simply don’t understand the tribulations of enforcing immigration law. In most of our conversations, there was a palpable nostalgia for some of the more benign proposals that the document laid out—a registration system, for instance; a way to track outgoing alien departures, not just entries; and, especially, a deportation process unmolested by the maneuverings of finicky defense counselors.

The LA Eight have been free for nine years, but Cole, their lawyer, takes little comfort. “This pattern repeats itself every time we face a crisis that creates fear,” he admonishes. “It’s easier to introduce these things if they’re targeted at foreign nationals than when they’re targeted at Americans. The government can say, ‘we’re talking away their liberties for your security.’”

As for the members of the ABC Committee, some would not rule out voting for Trump; they widely viewed his statements on immigration as flamboyant rhetoric, easy to be misinterpreted by a public that doesn’t understand hard truths, like their memo.