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June 15, 1988

Fouad Yacoub Rafeedie, Plaintiff,
Immigration And Naturalization Service, et al., Defendants

Joyce Hens Green, United States District Judge.

The opinion of the court was delivered by: GREEN

Joyce Hens Green, United States District Judge

 Plaintiff Fouad Yacoub Rafeedie, a permanent resident alien who has resided in the United States for the past thirteen years, except for a two-week trip to Syria in April 1986 to attend a meeting of the Palestinian Youth Organization ("PYO"), challenges the decision of the Immigration and Naturalization Service ("INS") *fn1" that seeks to exclude him from reentering the country through a summary exclusion proceeding conducted under Section 235(c) of the Immigration and Nationality Act, 8 U.S.C. § 1225(c). The INS has invoked the summary procedure on the basis of confidential information which, according to the INS, shows that plaintiff is a high-ranking member of a terrorist organization, the Popular Front for the Liberation of Palestine ("PFLP") (with which the PYO is allegedly affiliated), that he has undertaken fundraising and recruiting activities for the PFLP, and that he fought in combat for the PFLP in Lebanon in 1982. Plaintiff claims that the INS's decision to invoke the summary exclusion proceeding (whereby the INS is required to provide him only with notice of the charges against him and an opportunity to submit a written statement to the Regional Commissioner who could make a summary decision without a hearing or further proceedings), rather than to conduct an ordinary exclusion proceeding under Section 236 with an adversarial hearing before an immigration judge, is contrary to law and violates his constitutional rights to due process and free speech. This is the first time that the INS has used Section 235(c) to attempt exclusion of a permanent resident alien. *fn2"

 The matter comes now before the Court on plaintiff's motions for a preliminary injunction and for partial summary judgment *fn3" and defendants' motion to dismiss. *fn4" For the reasons set forth below, defendants' motion to dismiss is denied, and plaintiff's motion for summary judgment is denied, but plaintiff's motion for a preliminary injunction is granted.

 I. Background Allegations5

 Plaintiff Fouad Yacoub Rafeedie was born in 1957 in El-Bireh on the West Bank of the Jordan River, in what was then Jordan. Declaration of Fouad Yacoub Rafeedie ("Rafeedie Decl.") at para. 2. On January 26, 1975, Rafeedie came to the United States on an immigrant visa sponsored by a member of his family who was a United States citizen. Id. P 3. Since his initial entry, Rafeedie has been a lawful permanent resident alien of the United States. Id. P 4.

 Plaintiff currently resides in North Olmstead, Ohio with his wife, who is a United States citizen, and one child, born March 7, 1988. Id. P 5. In addition, Rafeedie's mother, a permanent resident alien, lives in Youngstown, Ohio, and he has four brothers, two sisters, and 27 nephews and nieces who are United States citizens living in the United States. Id.

 Plaintiff has been politically active while living in the United States, particularly with respect to issues involving Arab-Americans. Id. P 11. He has been "outspokenly critical of United States' policies in the Middle East particularly with respect to their effect on the rights of Palestinian people." Id. He has written numerous articles and appeared on television and radio programs on these issues, and he belongs to a number of Arab and Palestinian political and cultural organizations in this country. Id.

 Since coming to this country in 1975, plaintiff has desired and intended to become a naturalized United States citizen. Id. P 9. He first petitioned to become a naturalized citizen in April 1981. *fn6" In July of that year, he was called by the INS for an interview. He was accompanied to his interview with the INS officer by two witnesses. Id. P 10. He claims that the examiner questioned him and the two witnesses about his political beliefs and associations. Id. According to Rafeedie, the examiner told the witnesses that Rafeedie would not be given citizenship because of his political activities. Id.

 In October 1982, Rafeedie was called by the INS for a second interview. He was asked if he was a member of the Palestinian Liberation Organization or the Communist Party. He replied that he was not. Id. P 10. Rafeedie contends that although he was asked again about his political beliefs and associations, the examiner told him that he had passed the test, could become a citizen, and INS would call him in about a month to attend a naturalization proceeding. Id. He signed some forms and paid a $ 25.00 fee. Id.

 Plaintiff claims that the INS never called him after this examination. Id. When he called the INS office in Cleveland to inquire about whether he would be naturalized, the INS "always responded that either it has no file on me, that my file is still being processed, or that I should not call the INS." Id.7

 On April 7, 1986, plaintiff obtained a reentry permit from the INS in order to take a trip abroad. Rafeedie stated on his application that he intended to travel to Larnaca, Cyprus "because I received a telex that my mother is going through a surgery, and she likes me to attend, because its a major heart surgery." Complaint, Exhibit D, Attachment to Form I-147, Defendants' Specific Factual Allegations of Excludability under Section 235(c) of the Immigration and Nationality Act ("Specific Allegation") No. 9 [sic].

 Three days later, he obtained from the Syrian embassy in Washington, D.C. a visa to travel to Syria, which was stamped into his reentry permit. Id. at No. 10. According to defendants, plaintiff's mother at that time continued to reside in Ohio, and the hospital in Larnaca, Cyprus neither had facilities for performing major heart surgery nor a record of admittance of his mother. Id. at No. 11.

 Plaintiff departed for Syria on April 16, 1986. He traveled to Syria with Tarak Mustafa (a United States citizen) and Sulieman Shihadeh (a permanent resident alien), whom defendants contend are also members of the PFLP. The INS alleges that travel arrangements for Rafeedie, Mustafa, and Shihadeh, were made by a California travel agency and that they were seated next to each other on the flight from New York to London. Id. at No. 16.

 Upon their return to the United States, plaintiff, Mustafa, and Shihadeh were stopped and questioned by INS and Federal Bureau of Investigation officers at the airport in New York. Plaintiff reportedly denied knowing Mustafa and Shihadeh, and told the INS officers that he did not know anything about the PFLP or the PYO. Id. at No. 15. According to defendants, a scarf and pin marked with the letters "PYO" were taken from Rafeedie. Id.

 Shihadeh, on the other hand, reportedly admitted that he was returning from the PYO Congress, that the PYO was a division of the PFLP, and that he had attended the Congress as a representative of the Palestine community in Los Angeles, which had provided funds for the trip. Id. at No. 19. Shihadeh had an agenda from the PYO Congress and a card with his picture identifying him as a PFLP member with the rank of "fighter." Id. at No. 22. Shihadeh also had a camera containing film, which when developed after being confiscated, showed some photographs of Rafeedie associating with individuals at the PYO conference. One of the photographs on the roll included George Habash, the founder and top leader of the PFLP. Id. at No. 21. *fn8"

 Mustafa allegedly told the INS officers that he had known Rafeedie and Shihadeh prior to the April 16 flight. Id. at No. 17. Mustafa was found to possess papers titled "Palestine Youth Organization, First General Congress, Damascus, April 1986." Id. at No. 18.

 After the inspection, Rafeedie was paroled for deferred inspection and permitted to return to North Olmstead, Ohio.

 During the deferred inspection of plaintiff in Cleveland, Ohio on May 15, 1986, Rafeedie told the INS that he had not gone to Cyprus because his sister had telephoned him to inform him that his mother's surgery had been cancelled. Id. at No. 25. INS officers asked him to provide the name of his sister, the place from which she made the telephone call, and his mother's medical records. Id. at No. 26. He did not provide this information. On May 27, 1986, the INS reiterated its request in writing, asking plaintiff for additional information relating to the alleged cancellation of his mother's surgery. Id. Rafeedie did not respond.

 In a letter dated July 9, 1986, the INS asked Rafeedie to appear personally at the Cleveland INS office to provide the requested information. He responded that he could not appear because he was travelling out of Ohio for his engagement party, and his attorney indicated that he was having back surgery and would not be able to come for at least four weeks. Id. at No. 27.

 On March 12, 1987, the INS issued to plaintiff a Form I-222 which charged him with being excludable under Sections 212(a)(27) and (29) *fn9" of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(27), (29). Complaint, Exhibit A. The form recited those two statutory provisions, which provide for excludability of aliens:

(a)(27) -- "who the consular officer or the Attorney General knows or has reason to believe seeks to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States"
(a)(29) -- who "engage in activities which would be prohibited by the laws of the United States relating to espionage, sabotage, public disorder; or in other activity subversive to the national security, (B) engage in any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States, by force, violence, or other unconstitutional means, or (C) join, affiliate with, or participate in the activities of any [registered] organization . . . ."

 Rafeedie's case was sent to an immigration judge for scheduling of an exclusion hearing. Id. at No. 28.

 On May 7, 1987, the INS issued to plaintiff an amended Form I-122, which added a charge under 8 U.S.C. § 1182(a)(28)(F). This provision requires the exclusion of aliens:

(a)(28)(F) -- "who advocate or teach or who are members of or affiliated with any organization that advocates or teaches . . . (ii) the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers . . . of the Government of the United States or of any other organized government, because of his or their official character; or (iii) the unlawful damage, injury, or destruction of property; or (iv) sabotage." *fn10"

 After plaintiff's case was assigned to an immigration judge, plaintiff filed several motions, including a motion for specific notice of the basis for the charges against him and a motion for an order requiring defendants to state whether plaintiff was being subjected to electronic surveillance. Complaint, para. 25. In a pre-trial order dated December 18, 1987, the immigration judge ordered defendants by January 4, 1988 to more fully apprise Rafeedie of the basis for the charges against him and to answer plaintiff's motion regarding surveillance. Complaint, para. 26 and Exhibit C. The immigration judge also set a six-day exclusion trial to commence February 24, 1988. Id.

 On December 31, 1987, stating that it had received new confidential information requiring Rafeedie's excludability, the INS issued a Form I-147 to plaintiff, temporarily excluding him under Section 235(c) of the Immigration and Nationality Act on the basis of 8 U.S.C. § 1182(a)(27) and (a)(28)(F). The INS informed plaintiff that

subsequent to the issuance of the amended Form I-122 on May 7, 1987, which brought your case for consideration to an immigration judge, INS received confidential information which indicates that you are excludable from the United States under sections 212(a)(27) and (28)(F) of the Act, 8 U.S.C. 1182(a)(27) and (28)(F). The confidential information establishes that your admission into the United States would be prejudicial to the public interest, safety, or security. Disclosure of the confidential information would be prejudicial to the public interest, safety or security.

 Id. at 7-8. Attached to the Form I-147 were eight pages of "specific factual allegations of excludability," which summarized Rafeedie's status as a permanent resident alien, the circumstances surrounding his trip to Syria, the immigration inspection of his traveling companions Mustafa and Shihadeh, and the procedural history of the exclusion proceedings. The Form I-147 informed plaintiff that his application for admission to the United States, "together with any written statement and accompanying information you or your representative desire to submit to this office within 30 days, will be referred to the Regional Commissioner for consideration." Id.

 The confidential information that prompted the invocation of the Section 235 proceedings was not described in the Form I-147 or the attachments. Defendants have since elaborated on its nature. The INS contends that the "confidential information discloses that Rafeedie is a high ranking member of the PFLP, in the United States. He has been active in both fund raising and recruiting activities for the PFLP. He fought with the PFLP in Lebanon in 1982, and claimed to have been wounded in combat." *fn11" The confidential information is classified material and defendants continue to contend that disclosure of the confidential information confirming these assertions would be prejudicial to the public interest, safety, or security of the United States. Defendants' Opposition to Plaintiff's Motion for Partial Summary Judgment ("Defs. Opp."), at 39 n.18.

 In his declaration in support of his motions, plaintiff denies that he is or has even been "a member of or in any way affiliated with the Palestinian Liberation Organization or the Popular Front for the Liberation of Palestine." Rafeedie Decl. para. 15. He also states: "I am not now nor have I ever been a member of or in any way affiliated with any organization that engages in or supports terrorism, nor have I ever engaged in any terrorist activity myself." Id. P 16.

 On January 5, 1988, the immigration judge granted a motion by the INS to close the immigration hearing because the INS had initiated summary exclusion procedures. Complaint, paras. 27, 30, and Exhibits D, E. On January 22, 1988, District Director Robert L. Brown granted plaintiff an extension of time until February 25, 1988 to submit a written statement in response to the INS's allegations. Complaint para. 31 and Exhibit F. That deadline was further extended in light of this litigation. *fn12" On March 11, 1988, the INS served on Rafeedie and his counsel a copy of "Administrative Record: INS 'Public Submission' to Northern Regional Commission[er]," which comprises a 46-page brief arguing that Rafeedie should be excluded, and various exhibits and attachments, including the transcript of Shihadeh's exclusion hearing. Defs. Opp., Exhibit 2.

 With this background in mind, it is important to examine the procedural differences between a summary exclusion proceeding under Section 235 and an ordinary exclusion proceeding conducted under Section 236 before examining the merits of defendants' motion.

 When an alien enters or seeks to reenter the United States from another country, the examining immigration officer at the port of arrival is required to detain for further inquiry "every alien who may not appear . . . to be clearly and beyond a doubt entitled to land." 8 U.S.C. § 1225(b). If the examining immigration or special inquiry officer believes that an alien is excludable under 8 U.S.C. § 1182(a)(27), (28), or (29), the alien "shall be temporarily excluded." Section 235(c), 8 U.S.C. § 1225. The case is then reported without further inquiry to the Attorney General *fn13" "together with any such written statement and accompanying information, if any, as the alien or his representative may desire to submit in connection therewith." Id.14 At this point, the Regional Commissioner may direct that the alien either be given a hearing before an immigration judge, or, if confidential information is involved, be accorded only a summary proceeding. *fn15"

 The "ordinary" procedure for excluding aliens under Section 236 provides that, after an alien is issued a notice of a hearing (Form I-122), 8 C.F.R. § 235.6(a), an immigration judge *fn16" conducts an exclusion hearing, with presentation of evidence, witnesses, and cross-examination. 8 U.S.C. § 1226; 8 C.F.R. § 236.1. The alien must be informed of his right to counsel and has the right to open the hearing to the public and press. A complete record of the proceeding is kept. 8 C.F.R. § 236.2(e). If the alien is a permanent resident, the burden of proving excludability is on the government. Kwong Hai Chew v. Rogers, 103 U.S. App. D.C. 228, 257 F.2d 606 (D.C. Cir. 1958). *fn17" The decision of the immigration ...

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