D.W. NELSON, Circuit Judge:
This opinion decides three cases that have been consolidated on appeal. Two of the cases involve claims of selective enforcement
FACTUAL AND PROCEDURAL BACKGROUND
After initiating deportation proceedings, the INS arrested the eight named aliens in this case in January 1987. They were detained for several weeks in maximum security prisons and then released pending the outcome of deportation proceedings. The INS charged all but Mungai under various provisions of the McCarran-Walter Act of 1952 ("the 1952 Act")
In April 1987, the individual plaintiffs and several organizations initiated an action for damages, a declaration that the provisions of the 1952 Act under which the eight were charged are unconstitutional facially and as applied, and injunctive relief against the investigation, arrest, and deportation of aliens pursuant to the challenged provisions. On April 23, 1987, just four days before the district court's hearing on a motion for a preliminary injunction, the INS dropped the 8 U.S.C. § 1251(a)(6) ideological charges against the Six, but it retained the non-ideological, technical violation charges. The INS also dropped the original charges against Hamide and Shehadeh; but on April 28, 1987, it brought new charges against them under 8 U.S.C. § 1251(a)(6)(F)(iii), alleging that they were deportable as members of an organization that advocates or teaches the unlawful destruction of property. Later, the INS added a charge under 8 U.S.C. § 1251(a)(6)(F)(ii), alleging that Hamide and Shehadeh were associated with a group that advocates the unlawful assaulting or killing of government officers.
In April and May of 1987, former FBI director William Webster testified to Congress that "[a]ll of them were arrested because they are alleged to be members of a world-wide Communist organization which under the McCarran Act makes them eligible for deportation ... in this particular case if these individuals had been United States citizens, there would not have been a basis for their arrest." Hearings before the Senate Select Committee on Intelligence on the Nomination of William H. Webster, to be Director of Central Intelligence, 100th Cong., 1st Sess. 94, 95 (April 8, 9, 30, 1987; May 1, 1987). Also, at a press conference after the original charges were dropped against the Six, INS Regional Counsel William Odencrantz indicated that the change in charges was for tactical purposes and that the INS intends to deport all eight plaintiffs because they are members of the PFLP.
The district court issued orders on May 21, 1987 and June 3, 1987 holding that it had no jurisdiction over the 1952 Act claims of Hamide and Shehadeh on ripeness grounds. Hamide and Shehadeh unsuccessfully sought review of the statute by mandamus. Hamide v. United States District Court, No. 87-7249 (9th Cir. Feb. 24, 1988). When they again sought review in the district court, it found that their facial and as-applied constitutional challenges to the statute were not justiciable. American-Arab Anti-Discrimination Committee v. Meese, 714 F.Supp. 1060, 1064. (C.D.Cal.1989), aff'd in part, rev'd in part, American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F.2d 501, 511 (9th Cir.1991). Ruling on the claims of the Six, the district court found the challenged statutory provisions unconstitutionally overbroad. 714 F.Supp. at 1083-84. On review, the Ninth Circuit reversed the district
On April 5, 1991, after the repeal of the 1952 Act, the INS instituted new proceedings against permanent resident aliens Hamide and Shehadeh under the "terrorist activity" provision of the Immigration Act of 1990 ("the IMMACT"), Pub.L. No. 101-649, 104 Stat. 4978 (Nov. 29, 1990), codified as amended at 8 U.S.C. § 1251(a)(4)(B) (1994) (rendering deportable "[a]ny alien who has engaged, is engaged, or at any time after entry engages in terrorist activity (as defined in section 1182(a)))."
All eight aliens then filed suit in district court claiming that the INS had singled them out for selective enforcement of the immigration laws based on the impermissible motive of retaliation for constitutionally protected associational activity. On January 7, 1994, however, the district court granted summary judgment to the Government on Hamide's and Shehadeh's selective enforcement claim, finding that it lacked jurisdiction. At the same time, the district court granted a motion for further discovery and a preliminary injunction against further deportation proceedings in the case of the Six.
Meanwhile, in June of 1987, Barakat and Sharif applied for legalization under the IRCA. In 1991, they received Notices of Intent to Deny because the INS, using undisclosed classified information, considered them excludable under former 8 U.S.C. § 1182(a)(28)(F).
As a threshold matter, we must determine whether the district court had jurisdiction to adjudicate these challenges to the INS' discretionary decisions and procedures. We review de novo the district court's decision regarding its subject matter jurisdiction. Naranjo-Aguilera v. INS, 30 F.3d 1106, 1109 (9th Cir.1994).
A. SELECTIVE ENFORCEMENT CLAIMS
"To succeed on a selective prosecution claim, the defendant bears the burden of showing both `that others similarly situated have not been prosecuted and that the prosecution is based on an impermissible motive.'" United States v. Bourgeois, 964 F.2d 935, 938 (9th Cir.) (quoting United States v. Wayte, 710 F.2d 1385, 1387 (9th Cir.1983), aff'd, 470 U.S. 598 (1985)), cert. denied, 506 U.S. 901, 113 S.Ct. 290, 121 L.Ed.2d 215 (1992).
1. The Six Nonimmigrant Aliens
The Government argues that the district court lacked jurisdiction because the aliens' claim of selective enforcement can be reviewed directly by the court of appeals only upon review of a final order of deportation. We disagree.
a. The Statutory Scheme for Judicial Review
Section 106 of the INA, as amended, provides exclusive judicial review in the courts of appeals for "all final orders of deportation" after exhaustion of "administrative remedies available to [the petitioner] as of right." 8 U.S.C. §§ 1105a(a), (c) (1994).
The decision to institute deportation proceedings, the basis for a selective enforcement claim, is a discretionary decision of the INS director that is not subject to review by either the immigration judge ("IJ") or the Board of Immigration Appeals ("BIA"). See Lopez-Telles v. INS, 564 F.2d 1302, 1304 (9th Cir.1977). Both the IJ conducting the deportation proceeding and the Government agree that neither the IJ nor the BIA has jurisdiction to consider a selective enforcement claim during a deportation proceeding. Thus, we conclude that selective enforcement claims are not subject to the statutory provision for exclusive review after issuance of a final deportation order.
The Government's argument that the selective enforcement claim in this case is "purely legal" and thus reviewable only in the court of appeals is unpersuasive. Both prongs of the selective enforcement claim — disparate impact and discriminatory intent — require factual proof. See United States v. Armstrong, 48 F.3d 1508, 1513 (9th Cir.1995) (en banc), cert. granted, ___ U.S. ___, 116 S.Ct. 377, 133 L.Ed.2d 301 (1995). The district court ordered discovery and reviewed
b. The Government's Counterarguments
The Government offers three additional arguments to defeat district court jurisdiction. First, it suggests that a selective enforcement claim in the immigration context is inappropriate, because the decision to enforce the immigration laws is a non-justiciable political question involving foreign policy decisions that are immune from judicial review. Second, the Government claims that if such claims are viable, the statutory scheme provides alternative mechanisms for review in the agency or the appellate courts. Third, the Government argues that even though discretionary claims fall outside the statutory provision for exclusive review and exhaustion, we should decline jurisdiction to consider these claims on prudential ripeness grounds. We consider each of these arguments in turn.
(1) Political Question
The Government contends that the courts cannot consider an alien's selective enforcement claim because the Government's discretionary decision implicates foreign policy concerns that are non-justiciable political questions. See, e.g., Baker v. Carr, 369 U.S. 186, 208-213, 82 S.Ct. 691, 705-708, 7 L.Ed.2d 663 (1962) (discussing foreign policy issues as a basis for the political question doctrine).
There is, however, clear precedent for judicial recognition of selective enforcement claims. Although alienage classifications are closely connected to matters of foreign policy and national security, see, e.g., Plyler v. Doe, 457 U.S. 202, 219 n. 19, 102 S.Ct. 2382, 2395 n. 19, 72 L.Ed.2d 786 (1982); Fiallo v. Bell, 430 U.S. 787, 796, 97 S.Ct. 1473, 1480, 52 L.Ed.2d 50 (1977), "the judicial branch may examine whether the political branches have used a foreign policy crisis as an excuse for treating aliens arbitrarily," Shahla v. INS, 749 F.2d 561, 563 n. 2 (9th Cir.1984); see also Yassini v. Crosland, 618 F.2d 1356, 1360 (9th Cir.1980) (noting that "serious questions might arise" if the INS disregarded constitutional protections). "[T]he presence of constitutional issues with significant political overtones does not automatically invoke the political question doctrine." INS v. Chadha, 462 U.S. 919, 942-43, 103 S.Ct. 2764, 2779-80, 77 L.Ed.2d 317 (1983). Thus, we can and do review foreign policy arguments that are offered to justify legislative or executive action when constitutional rights are at stake. Id. Contrary to the Government's suggestion, the foreign policy powers which permit the political branches great discretion to determine which aliens to exclude from entering this country do not authorize those political branches to subject aliens who reside here to a fundamentally different First Amendment associational right. See, e.g., Landon v. Plasencia, 459 U.S. 21, 25-26, 103 S.Ct. 321, 325-326, 74 L.Ed.2d 21 (1982) (explaining the difference between exclusion of an alien upon initial entry and deportation of aliens who have been in the country); see also Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons From the Lives of Ellen Knauff and Ignatz Mezei, 143 U.Pa.L.Rev. 933, 939-47 (noting that the power of exclusion stems from the sovereign power of the federal government over its territory). If we were to decline jurisdiction on this basis, we would, in essence, proclaim that the courts have no essential function in ensuring that aliens are not targeted by the INS in retaliation for exercising their acknowledged constitutional rights, and we would allow those rights to be forfeited without redress. Clearly, the foreign policy powers of the political branches do not extend that far.
(2) Alternative Mechanisms for Review
We also reject the Government's assertion that the Hobbs Act provisions provide
Second, because § 1105a allows transfer to a district court exclusively for de novo review of citizenship claims, the general transfer provision available elsewhere under the Hobbs Act does not apply in the immigration context. Compare 8 U.S.C. §§ 1105a(a)(5), (7) with 28 U.S.C. § 2347(b)(3). Even those circuits that disagree with this circuit's interpretation that remand under § 2347(c) is not available have declined to apply § 2347(b)(3) to authorize a transfer under § 1105a to a district court for claims not addressable before the IJ and BIA. See, e.g., Coriolan v. INS, 559 F.2d 993, 1003 (5th Cir.1977).
The Government mistakenly relies on Public Util. Comm'r of Oregon v. Bonneville Power Admin., 767 F.2d 622 (9th Cir.1985), which held that the courts of appeals have exclusive jurisdiction of actions challenging the constitutionality of administrative proceedings under an act regulating utility rates. Id. at 624-25. That case involved a question of the breadth of the statutorily mandated jurisdiction, where the wording of the statute was much broader than the INS statute in the present case. See id. at 625-26. The statutory jurisdictional mandate in § 1105a is narrower and, in appropriate instances, permits equitable relief in the district court for constitutional and procedural challenges. See McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 484, 494, 111 S.Ct. 888, 892, 897, 112 L.Ed.2d 1005 (1991) (interpreting § 1105a in the IRCA context to find district court jurisdiction to hear constitutional and statutory challenges to INS procedures when meaningful judicial review of the statutory and constitutional claims otherwise would be foreclosed).
The Government also argues that this court should find that the district court lacked jurisdiction to hear these selective enforcement claims because of prudential ripeness concerns that are relevant to its jurisdiction to grant equitable relief. In Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), the Supreme Court established a two-pronged framework for ripeness analysis in the administrative agency context: courts should consider the fitness of the issues for judicial review and the hardship to the parties involved. Id. at 148-49, 87 S.Ct. at 1515-16. The "core principle" is that statutory requirements should not be construed to cause "irreparable injuries to be suffered" or the loss of "crucial collateral claims." Mathews v. Eldridge, 424 U.S. 319, 331 n. 11, 96 S.Ct. 893, 900-01 n. 11, 47 L.Ed.2d 18 (1976). We therefore agree with the Six that their claim is ripe for review, because (1) the chill to their First Amendment rights is an irreparable injury that cannot be vindicated by post-deprivation review and (2) exhaustion through the deportation proceeding would be futile, in that the IJ and BIA cannot consider and develop facts about INS' enforcement policies, practices, or motives, which are not subject to change through further agency interpretation.
The Supreme Court's overbreadth doctrine rests on the proposition that an overbroad statute has a chilling effect on First Amendment rights that cannot be vindicated through the normal channels of defense to a prosecution: that is, the legal and practical value of the First Amendment right
We also agree with the Six that exhaustion would be a futile exercise because the agency does not have jurisdiction to review a selective enforcement claim. Lopez-Telles, 564 F.2d at 1304. "If the agency lacks authority to resolve the constitutional claims, there is little point to requiring exhaustion." Xiao v. Barr, 979 F.2d 151, 154 (9th Cir.1992). Furthermore, we customarily decline to apply the prudential ripeness doctrine when exhaustion would be a futile attempt to challenge a fixed agency position. See, e.g., El Rescate Legal Serv. v. Executive Office of Immigration Review, 959 F.2d 742, 747 (9th Cir.1991). Other circuits have similarly found exhaustion futile unless "there is genuine doubt as to what is going to happen in the administrative process." Rafeedie v. I.N.S., 880 F.2d 506, 514 (D.C.Cir.1989).
Contrary to the Government's assertion, our earlier opinion in this case is not dispositive here. See American-Arab Anti-Discrimination Committee, 970 F.2d at 510-12. We held that prudential concerns weighed against the district court's assuming jurisdiction of the unconstitutional-as-applied challenge to the 1952 Act, because the factual record developed in the agency proceeding to support the application of the statute would assist our review of that claim. Id. at 510-511. In contrast, this case does not involve a facial or as-applied challenge to a statute. These selective enforcement claims are not moot now, and the speculative possibility that they may be rendered moot in the future is not sufficient to require futile exhaustion of administrative remedies. Therefore, we hold that the district court properly exercised jurisdiction over the nonimmigrant aliens' selective enforcement claims.
2. The Permanent Resident Aliens, Hamide and Shehadeh
The two permanent resident aliens, Hamide and Shehadeh, also contend that the district court had jurisdiction to consider their selective enforcement claims. Unlike the Six, Hamide and Shehadeh have been charged solely under provisions, in both the 1952 Act and the IMMACT, that are based on affiliation with disfavored political organizations. Because the posture in which their claims are presented is different from that of the claims of the Six, we consider them separately.
The basis for jurisdiction over Hamide's and Shehadeh's claims is essentially the same as that found to support district court jurisdiction for the Six. The exclusive mechanism for judicial review of a final deportation order does not provide a means of review of a selective enforcement claim for which the IJ and BIA lack adjudicatory authority.
The Government argues — and the district court ultimately agreed — that the ripeness concerns relevant to these claims are different because the motive for targeting Hamide and Shehadeh cannot be considered truly pretextual, in that both the 1952 Act and the IMMACT provisions under which they are currently charged treat some aspect of affiliation as a basis for deportation. The Government essentially argues that the legal issue addressed in the deportation proceeding—how the IMMACT's terrorist activity provisions should be interpreted and whether the aliens' actions satisfy those requirements—is the same issue that must be addressed, under the second prong of the selective enforcement claim, to determine whether the Government unconstitutionally has singled out these aliens on the basis of an impermissible motive of retaliation for exercise of their First Amendment rights.
We conclude that the claim that Hamide and Shehadeh assert here is broader than that which they may raise in a defense of deportation. The legal issue that the IJ and the BIA will address is whether the aliens' actions satisfy the requirements of the IMMACT's terrorist activity provisions; however, the issue underlying the selective enforcement claim of impermissible motive is whether the support of lawful activities of a disfavored organization that may also engage in unlawful terrorist activities provides a constitutional basis for deportation of a permanent resident alien. The selective enforcement claim necessarily imposes a different focus and requires the court to consider patterns of INS prosecutions rather than a particular application of a statute. Montes v. Thornburgh, 919 F.2d 531, 535 (9th Cir.1990) (finding § 1105a inapplicable to suits alleging a pattern and practice of constitutional violations).
We hold, therefore, that the district court erred in declining jurisdiction on ripeness grounds, and we remand for further proceedings in accord with this decision.
B. CLASSIFIED INFORMATION CLAIM
In 1986, Congress amended the immigration laws to allow legalization of undocumented aliens who had entered the country before January 1, 1982. IRCA, Pub.L. 99-603 § 201(a), 100 Stat. 3394 (Nov. 6, 1985), as amended and codified in 8 U.S.C. § 1255a (amending the Immigration and Nationality Act by adding section 245a regulating adjustment of status). The act established exclusive jurisdiction in the courts of appeals for judicial review of denials of legalization on review of final orders of deportation. 8 U.S.C. § 1255a(f)(4).
1. The Statutory Grant of Exclusive Jurisdiction
The Government argues that Barakat and Sharif are challenging an individual determination in a legalization proceeding, and thus must exhaust their administrative remedies by undergoing the deportation proceeding before they are entitled to judicial review of their claim that use of undisclosed classified information to evaluate adjustment-of-status applications violates due process. Because the agency proceeding will not address the due process claim, however, the statutory exhaustion provision does not require
2. Prudential Ripeness Concerns
The Government also contends that prudential ripeness concerns mandate a denial of district court jurisdiction. Soon after the HRC decision, the Supreme Court addressed the relationship between the statutory exclusive review provision for INS deportation orders and the prudential ripeness concerns in the IRCA adjustment-of-status context. See Reno v. Catholic Social Services, ___ U.S. ___, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) ("CSS") (considering the INS practice of rejecting without consideration any agricultural worker legalization applications from aliens whom INS employees deemed a priori ineligible under the statute). The CSS Court acknowledged that prudential ripeness concerns usually preclude jurisdiction "unless the effects of the administrative action challenged have been `felt in a concrete way by the challenging parties.'" Id. at ___, 113 S.Ct. at 2495 (quoting Abbott Labs., 387 U.S. at 148-49, 87 S.Ct. at 1515-16). Although "[i]n some cases the promulgation of a regulation will itself affect parties concretely enough to satisfy this requirement," id. at ___, 113 S.Ct. at 2495, the prudential doctrine and the statutory exclusive grant of jurisdiction "ordinarily" "dovetail" so that the claim ripens only at the point that the exclusive review provision applies, thus delaying review of constitutional challenges until the appellate review of a final deportation order. Id. at ___, 113 S.Ct. at 2497.
The Government argues that CSS bars any pre-enforcement review because legalization is a benefit whose denial does not place the applicant in the dilemma of paying a cost to comply or paying a penalty for noncompliance. See CSS, ___ U.S. at ___ - ___, 113 S.Ct. at 2495-96 (noting that the challenged regulations adopted to develop the criteria for temporary resident status merely limited access to a benefit not automatically bestowed on eligible aliens); Abbott Labs., 387 U.S. at 152-53, 87 S.Ct. at 1517-18 (discussing the compliance dilemma as one factor in determining ripeness). While we acknowledge that a positive outcome of the legalization process is a benefit for the alien, we disagree that this factor is determinative in the ripeness analysis of this due process claim, which challenges a collateral procedure limiting access to an entitlement. See, e.g., Atlantic Richfield Co. v. United States Dep't of Energy, 769 F.2d 771, 782-83 (D.C.Cir.1984) (noting that ripeness concerns balance all aspects of hardship to the parties against the extent to which strict adherence
a. Fitness: Concrete Effect and Adequacy of Agency Record
The Supreme Court recognized that an agency action may result in immediate adverse consequences or pose a realistic threat of such harm. CSS, ___ U.S. at ___, 113 S.Ct. at 2495. Challenges to the promulgation of a regulation, as in CSS, raise ripeness concerns that the courts will become involved in "abstract disagreements over administrative policies." Abbott Labs., 387 U.S. at 148, 87 S.Ct. at 1515. Here, however, the INS' determination to adjudicate nondiscretionary statutory entitlements on the basis of undisclosed information represents a concrete controversy: by applying for legalization, each alien has already taken whatever "affirmative steps ... he could take before the INS blocked his path." CSS, ___ U.S. at ___, 113 S.Ct. at 2496.
Furthermore, agency actions that "pre-determine" the future action of the agency generate a sufficiently concrete effect to be cognizable by the courts. See, e.g., Portland Audubon Society v. Babbitt, 998 F.2d 705, 707 (9th Cir.1993) (reviewing the Secretary of Interior's decision not to supplement an environmental impact statement with new information relating to the effects of logging on the northern spotted owl). In Portland Audubon, we held that the decision was ripe for review prior to the initiation of individual sales "because, to the extent these [agency actions] pre-determine the future, the Secretary's failure to comply with [the] NEPA [statute] represents a concrete injury which would undermine any future challenges by plaintiffs." Id. at 708. The Notices of Intent to Deny similarly "pre-determined the future" and concretely affected Barakat and Sharif by subjecting them to a legalization determination based on secret information.
Moreover, these claims are ripe because the factfinding necessary for determination of the claim can only occur at the district court. See, e.g., CSS, ___ U.S. at ___-___, 113 S.Ct. at 2499-2500 (recognizing the importance of an administrative record that would permit review on appeal from a deportation order); Tooloee v. INS, 722 F.2d 1434, 1437-38 (9th Cir.1983) (same). In the present case, the district court appropriately applied the Mathews balancing test, in order to determine whether the administrative procedure satisfies due process. Under the test, the court must weigh:
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). After ordering discovery, the district court granted the permanent injunction based on factual development in the following areas:
Because these issues do not come within the scope of the IRCA review process, the legalization and deportation proceedings cannot generate a record for review. See HRC, 498 U.S. at 493, 111 S.Ct. at 896 (noting that the administrative review process would not generate an adequate record for review of due process claims such as lack of translators). No facts relevant to the due process determination can be adduced at the agency hearing because that hearing proceeds under the premise that use of undisclosed information against the alien is legal. See, e.g., Rafeedie, 880 F.2d at 516-17 (stating
b. Hardship: First Amendment Chill and Right to Work
As noted earlier, injury to First Amendment rights more readily justifies a finding of ripeness "due to the chilling effect on protected expression which delay might produce." Planned Parenthood v. Kempiners, 700 F.2d 1115, 1122 (7th Cir.1983) (Cudahy, J. concurring) (noting that the statute in question forced a choice between exercising First Amendment rights to speak on the abortion issue and risking loss of eligibility for state benefits). Since the Government has targeted these aliens because of their association with the PFLP, the Notices of Intent to Deny had a palpable chilling effect. See, e.g., City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-57, 108 S.Ct. 2138, 2142-44, 100 L.Ed.2d 771 (1988) (permitting a challenge to a licensing statute because it immediately "intimidates parties into censoring their own speech"); Ripplinger v. Collins, 868 F.2d 1043, 1047 (9th Cir. 1989) (permitting a preenforcement challenge to a statute because of its immediate "chilling effect on protected speech"). We agree with the D.C. Circuit that irreparable injury to First Amendment rights results from the use of secret information about presumptively protected affiliations in INS proceedings, since an alien denied legalization faces loss of his right to work and to support his family, see HRC, 498 U.S. at 490-91, 111 S.Ct. at 895, not because of his "illegitimate activities, but [because of] his legitimate activities as an outspoken critic of the Government's foreign policy." Rafeedie, 880 F.2d at 517. When weighed against the minimal benefit to judicial or administrative interests from further administrative proceedings, these injuries tip the scales against requiring exhaustion. Id. at 518.
We hold that the district court appropriately exercised jurisdiction over Barakat's and Sharif's claim that use of undisclosed classified information in the legalization process violates due process requirements because it is a collateral, procedural challenge to an INS practice that requires factfinding beyond the purview of the agency proceedings and does not challenge the INS' individual determination of a substantive eligibility criteria. See id. Therefore, it falls under the HRC rule in accord with our Naranjo decision that district courts have jurisdiction when the "limited review scheme would be incapable of generating an administrative record adequate for effective judicial review." Naranjo-Aguilera, 30 F.3d at 1113.
A. THE PRELIMINARY INJUNCTION AGAINST SELECTIVE ENFORCEMENT
1. Standard of Review
We review a district court's issuance of a preliminary injunction for abuse of discretion, which occurs if the court bases its decision on an erroneous legal standard or on clearly erroneous findings of fact. Miller v. California Pacific Medical Center, 19 F.3d 449, 455 (9th Cir.1994) (en banc). A preliminary injunction is warranted where plaintiffs show "either a likelihood of success on the merits and the possibility of irreparable injury, or that serious questions going to the merits were raised and the balance of hardships tips sharply in [their] favor." Johnson Controls, Inc. v. Phoenix Control Sys., Inc., 886 F.2d 1173, 1174 (9th Cir.1989).
2. Selective Enforcement Justifies a Preliminary Injunction
The district court determined that the Six were likely to succeed on their selective enforcement claims. We reiterate here the prima facie elements of the claim: (1) "others similarly situated have not been prosecuted" (disparate impact) and (2) "the prosecution is based on an impermissible motive" (discriminatory motive). United States v. Aguilar, 883 F.2d 662, 705 (9th Cir.1989) (quoting United States v. Lee, 786 F.2d 951, 957 (9th Cir.1986)), cert. denied, 498 U.S. 1046, 111 S.Ct. 751, 112 L.Ed.2d 771 (1991); see also Wayte v. United States, 470 U.S. 598,
a. Control Group and Evaluation of Evidence
Crucial to the analysis is the establishment of the appropriate control group — a group that is similarly situated in all respects to those who claim selective enforcement, except for the attribute on which the selective enforcement claim rests. Aguilar, 883 F.2d at 706-07; United States v. Steele, 461 F.2d 1148, 1150 (9th Cir.1972) (finding an inference of discrimination where the defendant, who was a vocal advocate of non-compliance with census laws, was prosecuted while six others, who were not vocal though equally against compliance, were not prosecuted).
The district court selected as a control group those aliens who have either violated non-ideological provisions or are associated with terrorist organizations whose views the government tolerates. The factor thus isolated is association with governmentally disfavored political views, the ground on which the six aliens claim they are being prosecuted. The court found that the government's proffered evidence of prosecution of similarly situated individuals was insufficient to defeat the disparate impact claim, because the cases involved individuals who had actually committed terrorist acts, rather than persons who merely associated with terrorist organizations. The court's conclusion that the aliens presented prima facie evidence of disparate impact is not clearly erroneous.
b. First Amendment Guarantees in the Deportation Context
The court also found that the statements of Webster and Odencrantz, which reveal that the aliens have been targeted because of their membership in terrorist organizations, established the prima facie element of impermissible motive, because the Government acknowledges that United States citizens cannot be arrested for the same behavior. Thus, the gravamen of this case is the legal question whether aliens may be deported because of their associational activities with particular disfavored groups, or whether aliens who reside within the jurisdiction of the United States are entitled to the full panoply of First Amendment rights of expression and association. "We review de novo issues of law underlying the district court's preliminary injunction." Miller, 19 F.3d at 455.
(1) First Amendment Standards Protect Associational Activities
The Government does not dispute that the First Amendment protects a citizen's right to associate with a political organization; even if that association includes ties with groups that advocate illegal conduct or engage in illegal acts, the power of the Government to penalize association is narrowly circumscribed. "[T]he right of association is a `basic constitutional freedom' ... [that] lies at the foundation of a free society." Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 637, 46 L.Ed.2d 659 (1976) (citations omitted). Government cannot "deny rights and privileges solely because of a citizen's association with an unpopular organization." Healy v. James, 408 U.S. 169, 185-86, 92 S.Ct. 2338, 2348, 33 L.Ed.2d 266 (1972).
Under the standard enunciated by the Supreme Court in Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), advocacy may be punished only if it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Id. at 447, 89 S.Ct. at 1829. The Government must establish a "knowing affiliation" and a "specific intent to further those illegal aims." Healy, 408 U.S. at 186, 92 S.Ct. at 2348. "Guilt by association alone" violates the First Amendment. Robel, 389 U.S. at 265-66, 88 S.Ct. at 424-25.
Here, the Government has not attempted to show that the aliens' association with the PFLP satisfies the currently applicable Brandenburg standard; instead, it argues that aliens are not entitled to the same First Amendment protections that citizens enjoy.
(2) Aliens in the United States Enjoy Full First Amendment Rights
The Supreme Court has consistently distinguished between aliens in the United
Furthermore, the values underlying the First Amendment require the full applicability of First Amendment rights to the deportation setting. Thus, "read properly, Harisiades establishes that deportation grounds are to be judged by the same standard applied to other burdens on First Amendment rights." T. Alexander Aleinikoff, Federal Regulation of Aliens and the Constitution, 83 Am.J.Int'l L. 862, 869 (1989).
Because we are a nation founded by immigrants, this underlying principle is especially relevant to our attitude toward current immigrants who are a part of our community. See, e.g., Verdugo-Urquidez, 494 U.S. at 265, 110 S.Ct. at 1060 (recognizing that aliens with substantial ties through family and work form part of our "national community"). Aliens, who often have different cultures and languages, have been subjected to intolerant and harassing conduct in our past, particularly in times of crises. See, e.g., Alien Enemies Act of 1798, Act of June 25, 1798, ch. 58, 1 Stat. 570, 571 (authorizing the President to expel "all such aliens as he shall judge dangerous to the peace and safety of the United States"); John Higham, Strangers in the Land: Patterns of American Nativism 1860-1925, 229-31 (2d ed. 1963) (describing the Palmer Raids of 1919-20). It is thus especially appropriate that the First Amendment principle of tolerance for different voices restrain our decisions to expel a participant in that community from our midst. See Bridges, 326 U.S. at 149, 65 S.Ct. at 1450 ("[W]here the fate of a human being is at stake the presence of the evil purpose may not be left to conjecture.").
(3) The Government's Arguments Are Inapplicable to Deportation
(a) Deportation Differs Significantly From Exclusion
The Government's reliance on Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), is misplaced. Nor do we find dispositive our earlier decision to apply the Kleindienst standard to review the Attorney General's decision to require listing of all organizations of which an applicant for naturalization is a member: we noted that "aliens at naturalization are not necessarily entitled to the full protection of the First Amendment arguably afforded in deportation hearings." Price, 962 F.2d at 843 n. 7.
In Kleindienst, the Court merely upheld the Attorney General's discretion to deny a waiver to allow an entry visa to a Marxist professor from Belgium who had violated the restrictions on his visa during an earlier visit. 408 U.S. at 756-60, 92 S.Ct. at 2578-80.
The Kleindienst analysis expressly rests upon the Attorney General's discretionary power to determine who may enter the country from abroad, a power exercised by the political branches as a derivative of the sovereign power to "defend the country against foreign encroachment and dangers." Kleindienst, 408 U.S. at 765, 92 S.Ct. at 2582-83; see also Landon v. Plasencia, 459 U.S. 21, 28, 103 S.Ct. 321, 326, 74 L.Ed.2d 21 (1982). The essential distinction between exclusion and deportation rests on this territorial concept of a diverse national community within which citizens and resident aliens interact. See Kwong Hai Chew, 344 U.S. at 597 n. 5, 73 S.Ct. at 477-78 n. 5 (noting that
(b) Relevance of the Civil Nature of Deportation
We also reject the Government's contention that First Amendment constitutional protections are unnecessary because deportation is not a criminal proceeding. It is true that some constitutional protections, available to citizens and aliens alike in the criminal setting, do not apply in civil proceedings and thus do not apply to the non-criminal deportation proceedings. See, e.g., INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984) (holding that the exclusionary rule is inapplicable to deportation); Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 742, 98 L.Ed. 911 (1954) (holding that the Ex Post Facto Clause is inapplicable to deportation). However, because the First Amendment's protections apply equally to non-criminal and criminal proceedings, see, e.g., New York Times Co., 376 U.S. at 277, 84 S.Ct. at 724, constitutionally protected activities that the Government cannot punish by means of a criminal statute are likewise beyond its reach in a deportation proceeding.
(c) Relevance of Congress' Plenary Power
We find no merit in the Government's argument that the broad authority of the political branches over immigration matters justifies limited First Amendment protection for aliens at deportation. This is a variant of its jurisdictional argument that immigration issues that involve foreign policy concerns are non-justiciable political questions.
First, although Congress and the President may regulate aliens' admission and residence in the country, that regulation must be "consistent with the Constitution." Fong Yue Ting v. United States, 149 U.S. 698, 712, 13 S.Ct. 1016, 1021, 37 L.Ed. 905 (1893). "Since resident aliens have constitutional rights, it follows that Congress may not ignore them in the exercise of its `plenary' power of deportation." Bridges, 326 U.S. at 161, 65 S.Ct. at 1455 (Murphy, J., concurring); see also Chadha, 462 U.S. at 940-41, 103 S.Ct. at 2778-79. Thus, Congress' less restrained power to decide which aliens to exclude from entry, using processes and procedures that would be constitutionally suspect for citizens, is not dispositive regarding the constitutional constraints that operate at deportation. Cf. Haitian Centers Council, Inc., ___ U.S. at ___-___, 113 S.Ct. at 2560-61 (acknowledging the "important distinction" between deportation and exclusion in upholding the President's power to establish foreign policy reasons for repatriation of undocumented aliens intercepted on the high seas); Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (upholding immigration preference categories for aliens at entry); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953) (upholding summary processes for exclusion of aliens at entry).
Second, our First Amendment jurisprudence rests on the fundamental principle that limitations on First Amendment rights are themselves damaging to the values underlying First Amendment protections. See, e.g., Dombrowski, 380 U.S. at 486-89, 85 S.Ct. at 1120-22. If aliens do not have First Amendment rights at deportation, then their
(d) Inapplicability of Exceptions to First Amendment Protections
Nor are the contextual restrictions on speech that the Supreme Court has upheld in certain institutional settings with special needs analogous to the proposed restrictions on aliens subject to deportation. See, e.g., Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 270-73, 108 S.Ct. 562, 569-71, 98 L.Ed.2d 592 (1988) (schools); Turner v. Safley, 482 U.S. 78, 89-93, 107 S.Ct. 2254, 2261-63, 96 L.Ed.2d 64 (1987) (prisons); Goldman v. Weinberger, 475 U.S. 503, 507, 106 S.Ct. 1310, 1313, 89 L.Ed.2d 478 (1986) (military); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (limitations on election campaign contributions); Civil Serv. Comm. v. National Assoc. of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) (restrictions on federal employee political activities). The speech in issue here is not confined to a particular setting.
(e) Relevance of Other Distinctions Among Resident Aliens
We reject the government's contention that we apply gradations of First Amendment protection parallel to the rational distinctions that are permissible pursuant to the Equal Protection Clause in determining which citizens and aliens may receive particular government benefits. See, e.g. Mathews v. Diaz, 426 U.S. 67, 83-84, 96 S.Ct. 1883, 1893-94, 48 L.Ed.2d 478 (1976) (upholding a five-year residency requirement for medicare benefits for aliens); Hampton v. Mow Sun Wong, 426 U.S. 88, 100-101, 96 S.Ct. 1895, 1903-04, 48 L.Ed.2d 495 (1976) (holding that an arbitrary regulation barring aliens from employment in the federal civil service violates due process, though suggesting that a classification based on a legitimate "overriding national interest" would not violate equal protection). Ordinary equal protection analysis requires only that the government bestow benefits in accord with classifications that rationally satisfy the stated government objective. See, e.g., Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 271-72, 99 S.Ct. 2282, 2291-93, 60 L.Ed.2d 870 (1979). In contrast, to deny citizens or aliens some measure of their admitted rights to First Amendment associational freedom would be to nullify the right in its entirety. The Government begs the question in asserting that differential treatment is merited because these six aliens with technical visa violations are at the bottom of the sliding scale of alien connections to this country; underlying this contention is the assumption that the Government can use the pretext of technical violations to expel aliens on the basis of their group affiliations. That is the heart of the selective enforcement claim under consideration.
The aliens have provided evidence of disparate impact and of impermissibly motivated enforcement of the immigration laws. The aliens' First Amendment rights are subject to irreparable harm because of the prosecution, and they have a strong likelihood of success on their claim that the INS has selectively enforced the immigration laws in retaliation for their exercise of constitutionally protected rights. We conclude, therefore, that the district court did not abuse its discretion in granting a preliminary injunction against continued deportation proceedings for the Six.
B. THE DUE PROCESS CHALLENGE TO THE USE OF CLASSIFIED INFORMATION
1. Standard of Review for a Permanent Injunction
The district court's grant of a permanent injunction is reviewed "for an abuse of discretion or application of erroneous legal principles." United States v. Yacoubian, 24 F.3d 1, 3 (9th Cir.1994) (quoting Dexter v. Kirschner, 984 F.2d 979, 982 (9th Cir.1992)). Questions of law or mixed questions of law and fact implicating constitutional rights are reviewed de novo. LaDuke, 762 F.2d at 1322. The requirements for the issuance of a permanent injunction are "the likelihood
2. Appropriateness of the Permanent Injunction
a. Applicability of Due Process Protections to Aliens
Aliens who reside in this country are entitled to full due process protections. Diaz, 426 U.S. at 77, 96 S.Ct. at 1890 (citations omitted); see also Plasencia, 459 U.S. at 32, 103 S.Ct. at 329 (finding that a returning longtime resident alien, unlike an alien seeking initial admission, has due process rights to an exclusion hearing); Mezei, 345 U.S. at 212, 73 S.Ct. at 629 (1953) (stating that "aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law").
The Government does not dispute that the Due Process Clause protects Barakat and Sharif, but it contends that reliance on undisclosed information to determine legalization satisfies the demands of due process.
b. Statutory and Regulatory Authority for Summary Process
Barakat and Sharif applied for legalization in 1987. Section 201(a)(1) of IRCA establishes a two-step process by which illegal aliens who satisfy the eligibility requirements receive temporary resident status and then, after an additional time in the country, permanent resident status. 8 U.S.C. § 1255a. Among other criteria, the alien must demonstrate admissibility as an immigrant. 8 U.S.C. § 1255a(a)(4). The Attorney General must grant temporary and permanent status if the applicants satisfy the statutory criteria. 8 U.S.C. §§ 1255a(a), (b).
At the time that Barakat and Sharif applied for legalization, the INS regulations required that all issues of statutory eligibility for immigration benefits, including legalization, be determined solely on the basis of information in the record disclosed to the applicant. 8 C.F.R. § 103.2(b)(3)(ii) (1990); see also 8 C.F.R. §§ 103.2(b)(3)(iii), (iv) (1990); 8 C.F.R. § 242.17 (1994) (allowing use of undisclosed, classified information only for discretionary decisions). However, after a three-year delay, the INS finally issued Notices of Intent to Deny to Barakat and Sharif in March 1991, pursuant to amended regulations, effective upon publication as interim rules in January 1991, that extended the confidential use of classified information to statutory entitlement determinations. 8 C.F.R. §§ 103.2(b)(3)(ii), (iv) (1994) (as amended). The INS claimed that the information's "protection from unauthorized disclosure is required in the interests of national security, as provided in 8 C.F.R. § 103.2(b)(3)(iv)."
The Government cites section 235(c) of the Immigration and Nationality Act, 8 U.S.C. § 1225(c) (as amended), as authority for use of the undisclosed classified information in the legalization determination. That statute establishes the powers of INS officers to inspect aliens "seeking admission or readmission," 8 U.S.C. § 1225(a), to temporarily detain aliens who are not entitled to enter "at the port of arrival," 8 U.S.C. § 1225(b), and to exclude aliens on the particular finding by the Attorney General that confidential information supports that exclusion, 8 U.S.C. § 1225(c) (allowing summary process for exclusion). We do not, however, accept the proposition that denying a resident alien legalization is the same thing as "exclusion".
Use of summary process in settings other than exclusion raises troubling due process concerns. See, e.g., Kwong Hai Chew, 344 U.S. 590, 73 S.Ct. 472 (barring the INS from using summary process to exclude a resident alien returning from abroad, because he was entitled to a hearing as of constitutional right). Thus, even reentering permanent resident aliens, who enjoy few rights because of the admitted power of Congress over entry into the country, are entitled to additional due process safeguards when subjected to the summary exclusion process. Rafeedie, 880 F.2d at 512, on remand, 795 F.Supp. 13, 20 (D.D.C.1992) (applying the Mathews balancing test to determine that subjecting a returning resident alien, who was accused of being a PFLP
The Government's attempt to distinguish Rafeedie from the case at bar on the ground that legalization is a benefit is unpersuasive. Reentry is also a benefit — one for which aliens have no constitutional entitlement. Plasencia, 459 U.S. at 32, 103 S.Ct. at 329 ("an alien seeking initial admission to the United States requests a privilege").
This limitation of the classified information provision to the exclusion context comports with the requirement that administrative and judicial review of deportation orders be based on "reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. § 1105a(a)(4); see Whetstone v. INS, 561 F.2d 1303, 1306 (9th Cir.1977) (finding that "[d]eportation on a charge not presented in the order to show cause, or at the hearing, would offend due process" because record evidence must establish the basis for deportation). Because legalization decisions are reviewable under the deportation review provisions, the statutory scheme does not support use of summary process which relies on secret information as an alternative to regular hearing requirements.
The Government asserts, however, that under case law allowing use of undisclosed information for determinations that are statutorily unreviewable because they are delegated to the Attorney General's sole discretion, it has full statutory authority to use secret information to decide a legalization application. See Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242 (1956). Interpreting the statutory provision for suspension of deportation, 8 U.S.C. § 1254, the Jay Court upheld the use of undisclosed information to inform the Attorney General's decision on the grounds that Congress explicitly delegated the decision to her "unfettered discretion" as "an act of grace." Id. at 354, 76 S.Ct. at 924-25. The statutory provision under consideration here, in contrast, requires that "the Attorney General shall adjust" the alien's status if the statutory eligibility requirements are satisfied. See 8 U.S.C. § 1255a(a). Thus, the extension of use of confidential information to mandatory statutory provisions such as the one at issue here is not warranted by the Jay rationale.
The Government's reliance on Campos v. INS, 402 F.2d 758 (9th Cir.1968), is similarly misplaced. Dictum in that case suggests that an alien applying for legalization under the discretionary statute, 8 U.S.C. § 1255, is "assimilated" to the position of (treated as) an entering alien both in terms of eligibility criteria and in terms of procedural rights. Id. at 760. Our later cases, however, have interpreted this "assimilation" rule narrowly, holding that it "refers to the application of eligibility criteria for admission and to differences in burden of proof." Firestone v. Howerton, 671 F.2d 317, 320 & 320 n. 5 (9th Cir.1982). Moreover, further assimilation of applicants to the position of an alien at entry would virtually eliminate the primary distinction between aliens at entry and aliens residing within the country. Therefore, although applicants for legalization must satisfy the substantive admissibility requirements, their constitutional rights, including their right to procedural due process, are not correspondingly diminished. Thus, we find that there is no statutory or regulatory basis supporting the Government's interest in use of classified information in legalization decisions pursuant to § 1255a.
c. The Mathews Balancing Test
(1) The Private Interest Affected
Aliens who have resided for more than a decade in this country, even those
(2) The Risk of Erroneous Deprivation and Value of Safeguards
There is no direct evidence in the record to show what percentage of decisions utilizing undisclosed classified information result in error; yet, as the district court below stated, "One would be hard pressed to design a procedure more likely to result in erroneous deprivations." See, e.g., Goss v. Lopez, 419 U.S. 565, 580, 95 S.Ct. 729, 739, 42 L.Ed.2d 725 (1975) (finding that "the risk of error is not at all trivial" in summary discipline in school settings). Without any opportunity for confrontation, there is no adversarial check on the quality of the information on which the INS relies. See Knauff, 338 U.S. at 551, 70 S.Ct. at 316 (Jackson, J., dissenting) ("The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected.") (citation omitted).
Although not all rights of criminal defendants are applicable to the civil context, the procedural due process notice and hearing requirements have "ancient roots" in the rights to confrontation and cross-examination. Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959).
Id. As judges, we are necessarily wary of one-sided process: "democracy implies respect for the elementary rights of men ... and must therefore practice fairness; and fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights." Anti-Fascist Committee v. McGrath, 341 U.S. 123, 170, 71 S.Ct. 624, 647-48, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). "It is therefore the firmly held main rule that a court may not dispose of the merits of a case on the basis of ex parte, in camera submissions." Abourezk, 785 F.2d at 1061. Thus, the very foundation of the adversary process assumes that use of undisclosed information will violate due process because of the risk of error. We conclude that the district court did not err in finding that there is an exceptionally high risk of erroneous deprivation when undisclosed information is used to determine the merits of the admissibility inquiry.
(3) The Governmental Interest
The Government seeks to use undisclosed information to achieve its desired outcome of prohibiting these individuals whom it perceives to be threats to national security from remaining in the United States while protecting its confidential sources involved in the investigation of terrorist organizations. Yet the Government has offered no evidence to demonstrate that these particular aliens threaten the national security of this country. In fact, the Government claims that it need not. It relies on general pronouncements in two State Department publications about the PFLP's involvement in global terrorism and on the President's recent broad Executive Order prohibiting "any United States persons" from transacting business with the PFLP. See Exec.Order No. 12947 (January 23, 1995) (finding "that grave acts of violence committed by foreign terrorists that disrupt the Middle East peace process constitute an unusual and extraordinary threat to the national security, foreign policy, and economy
If Barakat and Sharif engage in any deportable activities, the government is not precluded from contesting their legalization or from instituting deportation on the basis of non-secret information. If the Government chooses not to reveal its information in order to protect its sources, the only risk it faces is that attendant to tolerance of Barakat's and Sharif's presence so long as they do not engage in deportable activities. Thus, although the Government undoubtedly has a legitimate interest in protecting its confidential investigations, it has not demonstrated a strong interest in this case in accomplishing its goal of protecting its information while prohibiting these aliens' legalization.
The Government's attempt to bolster its interest by relying on permitted uses of undisclosed information is misguided. Although the courts have allowed the Government to keep certain information confidential, the exceptions to full disclosure are narrowly circumscribed. Abourezk, 785 F.2d at 1061. For example, a formal claim of a "state secrets privilege" may prevent discovery and shield the use of materials against the Government in tort litigation for damages. Id.; see also United States v. Reynolds, 345 U.S. 1, 6-7, 73 S.Ct. 528, 531-32, 97 L.Ed. 727 (1953) (in a tort suit against the Government, permitting nonproduction of an Air Force accident investigation report because of national security concerns); Ellsberg v. Mitchell, 709 F.2d 51 (D.C.Cir.1983) (in a constitutional tort suit for damages against officials, allowing the Government to withhold production of wiretap information), cert. denied, 465 U.S. 1038, 104 S.Ct. 1316, 79 L.Ed.2d 712 (1984). However, the failure to disclose information prevents its use in the adversary proceeding: the effect of upholding the privilege is "that the evidence is unavailable, as though a witness had died." Ellsberg, 709 F.2d at 64. Even in those rare cases when the privilege operates as a complete shield to the government and results in the dismissal of a plaintiff's suit, the information is simply unavailable and may not be used by either side. Id.; In re United States, 872 F.2d 472 (D.C.Cir.), cert. dismissed, 493 U.S. 960, 110 S.Ct. 398, 107 L.Ed.2d 365 (1989); Molerio v. F.B.I., 749 F.2d 815, 820-22 (D.C.Cir.1984) (dismissing a Title VII complaint). Here, the Government does not seek to shield state information from disclosure in the adjudication of a tort claim against it; instead, it seeks to use secret information as a sword against the aliens.
Because of the danger of injustice when decisions lack the procedural safeguards that form the core of constitutional due process, the Mathews balancing suggests that use of undisclosed information in adjudications should be presumptively unconstitutional. Only the most extraordinary circumstances could support one-sided process. We cannot in good conscience find that the President's broad generalization regarding a distant foreign policy concern and a related national security threat suffices to support a process that is inherently unfair because of the enormous risk of error and the substantial personal interests involved. "[T]he fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution." Chadha, 462 U.S. at 944, 103 S.Ct. at 2780. Therefore, we find that the district court did not err in deciding that use of undisclosed classified information under these circumstances violates due process.
3. Applicability of Permanent Injunction Standards
Because there is no adequate remedy at law to compensate for denial of legalization based on a constitutional violation, and because the use of secret information about their affiliation with the PFLP irreparably injures Barakat and Sharif by depriving them of a strong liberty interest without due process and, indirectly, by chilling their First Amendment rights of expression and association, we affirm the district court's grant of a permanent injunction against use of undisclosed information to adjudicate Barakat's and Sharif's legalization applications.
We find that the district court had subject matter jurisdiction, pursuant to its federal question and general immigration jurisdiction, over each of the claims presented here and that each claim is ripe for review. We affirm the district court's preliminary injunction against the selective enforcement of immigration laws against the Six; we reverse its determination that it lacks jurisdiction to review Hamide's and Shehadeh's selective enforcement claim, and we remand for that review; and we affirm the court's issuance of a permanent injunction against the use of undisclosed classified information in legalization proceedings pursuant to § 1255a.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
Plaintiffs in each case are entitled to their costs against the Government.
8 U.S.C. §§ 1251(a)(6)(D), (F), (G), (H) (1988).
8 U.S.C. § 1182(a)(3)(B)(iii) (1994).
8 U.S.C. § 1182(a)(28)(F).
8 U.S.C. §§ 1105a(a), (c) (1994) (emphasis added).