activity himself. Defendants' case against Rafeedie appears to rest solely on his alleged membership in the PFLP and his supporting activities such as fundraising and recruiting. Plaintiff denies that he has in any way been a member of or involved with the PLO, the PFLP, or any terrorist organization, although he has not denied that he is a member of the PYO.
Were Rafeedie an American citizen, would such alleged membership and activity be protected? It is clear that mere association with an organization that advocates violence or terrorism, without proof that the individual's "'association poses the threat feared by the Government,' is an impermissible basis upon which to deny First Amendment rights." Healy v. James, 408 U.S. 169, 186, 33 L. Ed. 2d 266, 92 S. Ct. 2338 (1972). There is a critical constitutional distinction between "mere advocacy and advocacy 'directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action.'" Id. at 188 (citing Brandenburg v. Ohio, 395 U.S. 444, 447, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969)). "The government has the burden of establishing a knowing affiliation with an organization possessing unlawful aims and goals, and a specific intent to further those illegal aims." Id. (emphasis added).
Here, of course, defendants allege more than mere membership, they allege that Rafeedie has actually undertaken fundraising and recruiting activities for the PFLP, at least in the United States. Accepting these allegations as true for the moment, he may have crossed the first amendment line drawn in Section 901 between passive membership or advocacy to active furtherance of the aims and goals of a terrorist organization. That such activity would not be protected is supported by the legislative history of Section 901.
The purpose of the amendment was to deny the executive branch the power to deny admission to aliens "on the basis of their expression of beliefs, their advocacy of political positions, or their association in political organizations which would be constitutionally protected if engaged in by U.S. citizens within the United States." 133 Cong. Rec. 11343 (Dec. 14, 1987).
As discussed further below, were the allegations against Rafeedie based solely on his membership or advocacy, he would most likely be protected. However, Congress has suggested that fundraising and recruiting activities were not to similarly be viewed as benign.
As to the first "terrorist activity" exception, defendants contend that plaintiff is not entitled to the protections of Section 901 because it excludes PLO members, and impliedly, affiliated organizations such as the PFLP.
Defendants concede, as they must, that the plain language of 22 U.S.C. § 2691(c) refers only to members of the PLO and not to its affiliates. Under defendants' theory, the PLO exception should be read broadly to encompass all members of groups affiliated with the PLO, including the PFLP. The only support for defendants' expansive interpretation is that elsewhere in amending the Foreign Relations Authorization Act, Congress expressly included "constituent groups" and "allies and affiliates" of the PLO. 22 U.S.C. §§ 5201(a)(4), 5201(a)(7), 5202.
However, where Congress "includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally or purposefully in the disparate inclusion or exclusion." INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S. Ct. 1207, 1213, 94 L. Ed. 2d 434 (1987) (quoting Russello v. United States, 464 U.S. 16, 23, 78 L. Ed. 2d 17, 104 S. Ct. 296 (1983)). There is no illuminating discussion in the legislative history of Section 901 or the PLO exception. See S. Rep. No. 96-116, at 15; H. Conf. Rep. No. 96-399, at 18. Absent indications of congressional intent to the contrary, the Court must, and does, conclude that the term "PLO" alone in Section 901 does not include the PFLP. This accords with the settled rule that deportation statutes must be construed in favor of the alien. Lennon v. INS, 527 F.2d 187, 193 (2d Cir. 1987). Thus, the PLO exception does not apply to Rafeedie.
The application of the second exception poses more difficulty. This exception applies to an alien who "has engaged" or "is likely to engage" in a terrorist activity. This is a conduct- not a status-based provision. See Abourezk v. Reagan, 251 U.S. App. D.C. 355, 785 F.2d 1043, 1054 (D.C. Cir. 1986), aff'd mem., 484 U.S. 908, 108 S. Ct. 252, 98 L. Ed. 2d 1 (1987); see also Allende v. Shultz, 845 F.2d 1111, 1988 U.S. App. LEXIS 4677 *17 (2d Cir. 1988). Defendants do not allege in this case that plaintiff has directly engaged or is likely to directly engage in any terrorist activity, but they contend that his activities such as fundraising and recruiting for the PFLP constitute "abetting" or furtherance of such activities and therefore bring him within this provision.
The Conference Report accompanying Section 901 does suggest such a broad interpretation; it states that Congress considers that "organizing, abetting, or participating in terrorist acts or activities would include not only actually pulling a trigger or planting a bomb, but providing support or assistance, such as but not limited to: planning, providing facilities, recruiting, financing or fundraising, surveillance, courier service, transportation, providing weapons, or forging or unlawfully procuring documents." 133 Cong. Rec. 11344 (Dec. 14, 1987) (emphasis added). Despite this amplification, plaintiff argues these references to fundraising and recruiting must be read in the "activity specific" context, i.e., that the purpose of the fundraising and recruiting must be to facilitate terrorist activities, not just generally to further the purposes of a terrorist organization. A genuine issue of material fact is thus presented regarding the nature of Rafeedie's alleged fundraising and recruiting activities.
Defendants have not yet revealed to this Court the exact nature of what they allege to be plaintiff's fundraising and recruiting activities for the PFLP in the United States. While defendants have not argued that all of the activities of the PFLP are terrorist activities, plaintiff has similarly not contended that, if Rafeedie did undertake fundraising and recruiting, it was for "innocent" purposes. Conceivably, under some circumstances, plaintiff's fundraising and recruiting might be characterized as passive, innocent, or in furtherance of advocacy or speech. On the other hand, the money may well have been raised directly for the PFLP's "war chest" to finance its activities, including terrorist activities. Since defendants' description of its alleged proof against plaintiff at this point is inadequate, it is impossible to determine whether his alleged activities did in fact directly aid the PFLP in carrying out terrorist activities or whether they were clearly for nonterrorist purposes. See Healy, 408 U.S. at 186. Resolution of this issue may depend on who bears the burden of proof. On the one hand, to require the government to show that plaintiff's fundraising and recruiting went directly to support a terrorist activity, rather than other goals of the PFLP, might be an impossible burden. And, arguably, it is the plaintiff's task to prove that he is entitled to the protection of Section 901. On the other hand, it may also be a difficult burden for plaintiff to show that any fundraising or recruiting done was for "innocent" purposes; perhaps, however, an alien assumes this risk of proof when he becomes involved with a terrorist organization and does not clearly delimit his activities on its behalf. In any event, because the record is wholly inadequate on this issue, summary judgment is inappropriate. The interests at stake are important. Both parties should have an opportunity to present their evidence on this issue to the Court, if necessary, through in camera procedures.
4. Plaintiff's Remaining Claims
A full discussion of plaintiff's remaining three claims is unnecessary here for several reasons. First, plaintiff has requested summary judgment only on Counts I-IV.
As discussed above, a genuine issue of material fact is disputed with regard to whether the INS is in fact basing its exclusion charges on non-protected activity, and therefore, summary judgment cannot therefore be granted on Count IV, which challenges Sections 212(a)(27) and (a)(28)(F) under the First Amendment.
In order that plaintiff's remaining constitutional claims may be properly addressed at the appropriate time, deliberate and careful development of the record is necessary. The Court therefore turns to the remaining factors considered in determining whether preliminary relief should be granted.
B. Irreparable Harm
As discussed earlier with respect to defendants' motion to dismiss for lack of exhaustion, plaintiff has persuasively argued that he will be irreparably injured should he be required to go through the Section 235(c) proceeding. Plaintiff would immediately lose his right to work and be subject to detention. These interests are weighty, Landon v. Plasencia, 459 U.S. 21, 34, 74 L. Ed. 2d 21, 103 S. Ct. 321 (1982), and alone weigh heavily in favor of preliminary relief. Plaintiff has lived in the United States for thirteen years, has developed family, educational, and employment ties in his community. The impact of detention pending review would indeed be grave. In view of the high likelihood of injury, preliminary injunctive relief is warranted. See Population Institute, 797 F.2d at 1078.
C. Public Interest and Impact on Third Parties
Rafeedie has been a free man ever since he was temporarily denied re-entry two years ago, in April 1986. By releasing him on parole from his temporary exclusion, the INS has already made a determination that such release was in the public interest and does not pose a threat to national security. Defendants do not allege that plaintiff has undertaken activities since then that endanger the public interest. Any public interest in continuation of the summary exclusion proceeding, as discussed above with respect to defendants' exhaustion arguments, or adverse impact on third parties from enjoining such proceedings, is minimal and outweighed by Rafeedie's liberty interests.
Accordingly, for the reasons set forth above, it is hereby
ORDERED that defendants' motion to dismiss is denied; plaintiff's motion for preliminary injunction is granted; and plaintiff's motion for partial summary judgment is denied; and it is
FURTHER ORDERED that there shall be a status call on July 7, 1988 at 9:30 a.m. to determine further proceedings in this case.
IT IS SO ORDERED.