Appeal from the United States District Court for the Central District of California. D.C. No. CV-87-2107-SVW. Stephen V. Wilson, District Judge, Presiding.
Cecil F. Poole and David R. Thompson, Circuit Judges, and Philip M. Pro, District Judge.*fn* Opinion by Judge Poole.
The government appeals from the district court's declaratory judgment that sections 241(a)(6)(D), (F)(iii), (G)(v), and (H) of the McCarran-Walter Act of 1952, codified in 8 U.S.C. §§ 1251(a)(6)(D), (F)(iii), (G)(v), and (H) (the Act), are unconstitutionally overbroad in violation of the first amendment.*fn1 We affirm in part, reverse in part, vacate the judgment and remand for proceedings not inconsistent with this opinion.
In January 1987, the Immigration and Naturalization Service ("INS") detained plaintiffs-appellees (individual appellees), Bashar Amer, Ayman Mustafa Obeid, Julie Nuangugi Mungai, Aiad Khaled Barakat, Naim Nadim Sharif, and Amjad Mustafa Obeid, all non-immigrant aliens, for routine status, non-ideological violations under 8 U.S.C. §§ 1251(a)(2) and 1251(a)(9), and for violations of section 1251(a)(6) because of their membership in the Popular Front for the Liberation of Palestine (PFLP). PFLP is an organization which the government alleges advocates and teaches the "international and governmental doctrines of world communism," as recited in section 1251(a)(6)(D). Specifically, the INS alleged that the individual appellees violated sections 1251(a)(6)(D), (G)(v), and (H). In January 1987, the INS also began deportation proceedings against Khader Musa Hamide and Michel Ibrahim Shehadeh, permanent resident aliens, for their membership in the PFLP, alleging violations of sections 1251(a)(6)(D), (G)(v), and (H). On April 23, 1987, four days prior to the hearing set in this case by the district judge to consider plaintiffs' request for a preliminary injunction, the INS dropped its section 1251(a)(6) charges against the individual appellees, but retained the non-ideological charges.*fn2 The INS also changed the charges against Hamide and Shehadeh, alleging that they had violated section 1251(a)(6)(F)(iii).*fn3
On April 3, 1987, the individual appellees, joined by various organizations, including the American-Arab Anti-Discrimination Committee (American-Arab), and Hamide and Shehadeh, filed this complaint in the District Court for the Central District of California claiming that section 1251(a)(6)(D) violated the first and fifth amendments, that the government engaged in selective prosecution in violation of the first and fifth amendments, and that the INS procedures could not provide them with a fair and impartial hearing. They sought declaratory and injunctive relief. On May 12, 1987, the complaint was amended to include first and fifth amendment challenges to sections 1251(a)(6)(D), (F)(iii), (G)(v), and (H), and to include the claim that government misconduct deprived plaintiffs of due process. On May 21, 1987, the district judge dismissed Hamide's and Shehadeh's claims as to sections 1251(a)(6)(F)(iii), for lack of jurisdiction and stayed the other claims pending a ruling by this court on the petition for writ of mandamus. Hamide and Shehadeh's petition for writ of mandamus was denied by order of this court on February 24, 1988. Hamide v. United States District Court for the Central District of California, No. 87-7249.
On June 15, 1988, plaintiffs filed a second amended complaint which retained their first and fifth amendment challenges but added a challenge to the Foreign Relations Authorization Act, (FRAA) Fiscal Years 1988 and 1989, Pub. L. No. 100-204, § 901, 101 Stat. 1331, 1339 (1987) (amended October 1, 1988). In a published memorandum opinion and order, American-Arab Anti-Discrimination Committee v. Meese, 714 F. Supp. 1060, 1084 (C.D. Cal. 1989), the district judge concluded that the challenged provisions of the McCarran-Walter Act were substantially overbroad in violation of the first amendment. The court accordingly granted plaintiffs' motion for summary judgment and request for declaratory relief. However, believing that declaratory relief provided an adequate remedy at law, the district court denied injunctive relief. Id. at 1063. The district court also held that, given this relief, there was no need to address the challenge to the constitutionality of the FRAA. Id. On January 26, 1989, the district court directed entry of final judgment pursuant to Fed. R. Civ. P. 54(b). The district court retains jurisdiction over appellees' remaining claims. We have jurisdiction over final orders pursuant to 28 U.S.C. § 1291.
THE DISTRICT COURT'S RULING
In his memorandum opinion and order, the trial judge first considered whether the individual and organizational plaintiffs had standing. Id. at 1064-74. He determined that he was without jurisdiction to hear the constitutional challenges of Hamide and Shehadeh. Id. at 1064. They do not appeal this determination. The court held that the other individual appellees had standing because, although they were not presently charged under the challenged provisions of the McCarran-Walter Act, they had shown that they were in jeopardy of being so charged in the future. The court held that the government's continuing belief that the individual appellees belonged to a world-wide "communist" organization, the government's unwillingness to disavow any intent to bring the same charges against the individual appellees, the fact that the government's current manifestation of its willingness to use similar McCarran-Walter Act provisions against Hamide and Shehadeh on account of their membership in the PFLP, and the individual appellees' expressed intent to continue to engage in the conduct for which they were originally charged, all supported the finding of their standing. Id. at 1064-71. The court dismissed all the organizational plaintiffs except American-Arab. Id. at 1071-72. The dismissed organizations do not appeal.
On the merits, the court determined that aliens are entitled to the same degree of first amendment protections as are citizens. Id. at 1082. Therefore, applying the test articulated in Brandenburg v. Ohio, 395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969), the court held that the challenged statutory provisions were substantially overbroad under the first amendment because they penalized both protected and unprotected speech. 714 F. Supp. at 1082-84.
We agree with the district court that the individual appellees have standing. We nevertheless determine that the district court should have stayed its exercise of jurisdiction because, in our view, the first amendment issues tendered by appellees are not ripe for review. We therefore vacate the district court's order as to the substantive issues. We reverse the declaratory judgment, and ...