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May 28, 1992



The opinion of the court was delivered by: JOYCE HENS GREEN

Every Judge who has examined this case agrees that "the government's basic position" is "profoundly troubling." *fn1" Plaintiff Fouad Yacoub Rafeedie ("Rafeedie"), a permanent resident alien who has resided in the United States since 1975, challenges the decision of the Immigration and Naturalization Service ("INS") to conduct summary exclusion proceedings against him under Section 235(c) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. § l225(c). *fn2" The INS has invoked the summary procedure on the basis of confidential information, which, according to the defendants, indicates that plaintiff is a high-ranking member of the Popular Front for the Liberation of Palestine ("PFLP").

 The matter comes now before the Court on defendants' motion for judgment on the pleadings and plaintiff's renewed motion for partial summary judgment. For the following reasons, defendants' motion is granted in part and denied in part, and plaintiff's motion is granted in part and denied in part.


 The Immigration and Nationality Act, which operated to exclude plaintiff, provides that upon entry, or reentry, into the United States "every alien . . . who may not appear to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to land" is detained for further inquiry. 8 U.S.C. § 1225(b). If, upon investigation, the INS determines that the alien is excludable, the agency may initiate exclusion proceedings against that individual. Such proceedings may take one of two forms: plenary proceedings under § 236 of the Act, 8 U.S.C. § 1226, or summary proceedings under § 235(c), 8 U.S.C. § 1225(c).

 Plenary exclusion proceedings are conducted before an Immigration Judge ("IJ"), a Justice Department officer who is independent of the INS. In such proceedings, an alien has the right to be represented by counsel and must be so apprised. 8 C.F.R. § 236.2(a). Moreover, the proceedings are on the record, and upon the alien's election, may be open to the public and the press. Id. In addition, the alien has the opportunity to present evidence and cross examine witnesses. 8 U.S.C. § 1226; 8 C.F.R. § 236.2(a). If the alien is a permanent resident, as is the plaintiff, the burden is on the INS to establish his or her excludability. Kwong Hai Chew v. Rogers, 257 F.2d 606, 606 (D.C. Cir. 1958). Finally, any decision to exclude the alien is appealable to the Board of Immigration Appeals. 8 C.F.R. §§ 236.7, 3.36(a), 3.1(b).

 In contrast, summary proceedings under § 235(c) may be used only against an alien who appears to be excludable under certain enumerated sections of the Act. *fn3" In the instant case, the following provisions were invoked against plaintiff: "Aliens who the consular officer or the Attorney General knows or has reason to believe seek 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"; "aliens 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 (either of specific individuals or of officers generally) 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"; and "aliens with respect to whom the consular officer or the Attorney General knows or has reasonable ground to believe probably would, after entry, (A) 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 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 organization which is registered or required to be registered under section 786 of Title 50." 8 U.S.C. §§ 1182(a)(27), (a)(28)(F), (a)(29). *fn4"

 In the case of a summary exclusion proceeding, the examining immigration officer at the port of arrival "if possible, takes a brief sworn question-and-answer statement from the alien," advises the individual of his or her "right to make written representations," and reports the case to the appropriate INS District Director. 8 C.F.R. § 235.8(a). The District Director then forwards the case to the Regional Commissioner, who considers it together with the written statement and "accompanying information, if any, as the alien or his representative may desire to submit. . . ." 8 U.S.C. § 1225(c). The permanent resident alien is entitled to neither a hearing nor an opportunity to confront the evidence. Moreover, if the information supporting the exclusion is "of a confidential nature the disclosure of which would be prejudicial to the public interest, safety, or security," it need not be disclosed to the resident, 8 C.F.R. § 235.8(b), and the Regional Director may summarily exclude him or her and order deportation. If the decision of the Regional Commissioner contains confidential information, then no more than a "separate order showing only the ultimate disposition of [the alien's] case" need be served. 8 C.F.R. § 235.8(c). Unlike proceedings under § 236, there is no appeal. Id.


 The facts giving rise to this case have been set out in two previous opinions of both this Court and the Court of Appeals, *fn5" and thus need not be recounted in full here. Nevertheless, a brief recitation of the procedural history of this case is useful to an understanding of the issues presently before the Court.

 Rafeedie was born in Jordan in 1957 and came to the United States in 1975 on an immigrant visa. He has been a lawful permanent resident of the United States since arriving here. In April 1986, he applied for and received from the INS a permit to travel outside the United States. He stated on his application that he wished to travel to Cyprus because his mother was having major heart surgery there. After receiving his reentry permit, however, he allegedly travelled to Syria rather than to Cyprus, and purportedly attended a meeting of a group closely associated with the Popular Front for the Liberation of Palestine ("PFLP"). Just two weeks after receiving his permit, on April 30, 1986, Rafeedie applied for re-admission to the United States at the port of entry in New York City, and was paroled to his home in Cleveland, Ohio pending a decision on that application. *fn6" In March, 1987, the INS District Office in Cleveland initiated "ordinary" exclusion proceedings against Rafeedie, pursuant to 8 U.S.C. § 1226. On December 31, 1987, the INS moved the immigration court to terminate those proceedings and instituted summary exclusion proceedings under 8 U.S.C. § 1225(c). The motion to terminate the ordinary proceedings was granted in January, 1988.


 On February 12, 1988, Rafeedie sued to interrupt and preclude the administrative proceedings. On June 15, 1988, the Court issued an Order, denying the government's motion to dismiss, granting Rafeedie's motion for a preliminary injunction against both summary and ordinary exclusion proceedings, and denying plaintiff's motion for partial summary judgment as to some of his claims. The Court, inter alia, rejected the government's jurisdictional argument that before Rafeedie could bring any of his constitutional challenges, he was required to exhaust administrative remedies under 8 U.S.C. § 1105a(c) and found factual disputes as to whether Rafeedie had committed nefarious acts abroad that would divest him of the due process rights normally accruing to a returning permanent resident, whether the INS was seeking to exclude Rafeedie for conduct protected by the First Amendment, and whether Rafeedie was seeking admission in order to engage in terrorist activity that would disqualify him from relief under section 901(a) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, Pub. L. No. 100-204 ("FRAA").

 The government appealed the preliminary injunction to the United States Court of Appeals for the District of Columbia Circuit, principally challenging the Court's refusal to require exhaustion. Rafeedie obtained leave to cross appeal the holding below that his right to due process depended upon whether his foreign trip was taken for a nefarious purpose. This Court stayed the instant action pending further resolution of the issues on appeal.

 On July 21, 1989, the Court of Appeals affirmed the injunction against summary exclusion proceedings under section 1225(c), reversed the injunction against ordinary proceedings under 8 U.S.C. § 1226, and reversed the holding that Rafeedie may not have a right to due process. Specifically, the panel majority narrowly held that under the unusual circumstances of this case, the statutory exhaustion requirement in 8 U.S.C. § 1105a(c) does not apply. With respect to Rafeedie's cross appeal, the panel endorsed this Court's holding that section 1225(c) applies to Rafeedie as a matter of statutory construction but found that Rafeedie was entitled to partial summary judgment on the question whether the Fifth Amendment guarantees him due process in his exclusion proceedings; the panel found that "the degree of nefariousness of the alien's trip was irrelevant to the due process inquiry[, and] for that purpose, the only relevant question was whether the alien had been gone so long as to lose her permanent resident status." Rafeedie II, 880 F.2d at 522. However, the Court of Appeals expressly declined to grant Rafeedie summary judgment on his due process claim. Rather, that Court remanded the case to this Court for further proceedings. *fn7"

 On January 19, 1990, Rafeedie filed his first amended complaint for declaratory and injunctive relief (the "complaint").


 Summary judgment is appropriate when there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "The inquiry performed is the threshold inquiry of determining whether there is a need for trial--whether, in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202 , 106 S. Ct. 2505 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. At the same time, however, Rule 56 places a burden on the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265 , 106 S. Ct. 2548 (1986).

 In contrast, under Rule 12(c) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."), any party may move for judgment on the pleadings at any time "after the pleadings are closed but within such time as not to delay trial . . . ." Judgment on the pleadings for the government is appropriate upon a showing that Rafeedie cannot prevail even if all the factual allegations in his Complaint are taken as true.


 As the Court of Appeals defined the due process inquiry:

 Rafeedie is in the unusual position of challenging a process not entirely before, and certainly not after, it has taken its course, but effectively in its midst. . . . To the extent that the INS has, in some particulars, granted Rafeedie more than the statute requires, the district court should, in determining whether the Fifth Amendment has been satisfied, consider the processes that have actually been afforded him. As to the portion of the proceeding yet to come, however, Rafeedie's challenge is a facial one.

 Rafeedie II, 880 F.2d at 524. Thus, this Court must examine the provisions as they have been applied to Rafeedie and on their face, as they could be applied to the plaintiff in the future. ...

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