The opinion of the court was delivered by: YVETTE KANE, District Judge
Petitioner Farouk Abdel-Muhti, a detainee of the Bureau of Immigration
and Customs Enforcement ("ICE"), is subject to a final order of removal
dated September 25, 1995, to deport him to either Jordan or Israel.
(Doc. No. 8, Ex. 1). He filed this habeas corpus petition, brought
pursuant to 28 U.S.C. § 2241, in the District Court for the District of
New Jersey on November 6, 2002. On June 3, 2003, after Petitioner was
moved to the York County Prison, his case was transferred to this Court.
An Amended Verified Petition was filed on September 11, 2003. (Doc. No.
8). A hearing on the petition was conducted on March 30, 2004.*fn1
Petitioner alleges, inter alia, that his continued detention while
awaiting removal, now approaching two years, is in violation of §
241(a)(6) of the Immigration and Nationality Act, as interpreted by the
Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001). For the reasons
explained below, this Court must agree. Accordingly, his release will be
ordered under conditions of supervision set forth in 8 U.S.C. § 1231(a)(3)
and implementing regulations.
Petitioner represents, and ICE has produced no evidence to refute the
claim, that he is a Palestinian who was born in 1947 in the West Bank in
Ramallah. At the time, the West Bank was part of "Mandate Palestine," ruled by Britain. Of course, since that
time, the area has been governed by the Hashemite Kingdom of Jordan from
1948 to 1988, and is now classified as a "territory under foreign
military occupation." (Doc. No. 8, Ex. C; Aff. No. 6 of Cobban).
The first record of Petitioner's entry into the United States is on
November 18, 1963, when, at the age of sixteen, Petitioner entered the
United States as a visitor for pleasure under the name of George Muhti
Nasser. (Doc. No. 12, Ex. A). On April 21, 1964, approximately five
months after his arrival, he was deported to Honduras after overstaying
his visa. Less than a year later, on March 31, 1965, he re-entered the
United States under the name of Jorge Alberto Muhti-Nasser and
represented to immigration officials that he was a United States citizen
born in Puerto Rico. The following month, he informed immigration
officials that he was from Honduras. On October 5, 1965, he was convicted
of illegal re-entry and, within a month, he "self-deport[ed] to Peru."
(Doc. No. 17, Ex. C at 1). During this time, he also gave officials
various conflicting dates of birth. (See, e.g., Doc. No. 1, Part 17, Ex.
2, April 3, 1964 Aff. (birth date of June 25, 1944); Ex. 8, record of
sworn statement (birth date of June 17, 1944)).
In September 1971, Petitioner illegally re-entered the United States
without inspection and was placed in deportation proceedings. On November
5, 1975, he reported to immigration officials for the first time that he
was Palestinian. He was immediately granted the discretionary relief of
voluntary departure with an alternate order of deportation. (Doc. No. 8,
Ex. D). He failed to depart as agreed and therefore, the order became a
final order of removal. He was released under an order of supervision,
with a bond, pending removal. In July 1982, he failed to report as
ordered. (Doc. No. 8, Ex. E at 3 (notation)). Petitioner's April 26, 2002 Detention
Approximately eleven years later, immigration officials became aware of
Petitioner's whereabouts following his May 7, 1993, arrest for 1st degree
forcible rape, forcible sexual assault, assault with intent to cause
physical injury, menacing in the 2nd degree and criminal possession of a
weapon in the 4th degree. On June 29, 1993, he pled guilty to one count
of attempted assault.*fn2 His immigration case was reopened on the INS's
unopposed motion, and Petitioner was released on a $15,000.00 bond
pending a hearing. (Doc. No. 8, Ex. E). Petitioner failed to appear for a
September 25, 1995 hearing. He had been ordered removed to Palestine in
1975 (Doc. No. 8, Ex. D), and then following the motion to re-open (Doc.
No. 8, Ex. E), he was subsequently ordered removed to either Jordan or
Israel in absentia under the name Faruk Mahmoud Abdel-Muhti. (Doc. No. 8
at 16; Doc. No. 1, Part 17, Ex. 43). Petitioner filed a motion to re-open
on October 5, 1995, providing evidence of an emergency stay in the
hospital that prevented him from appearing at the hearing. (Doc. No. 8,
Ex. G, Aff. of Farouk Abdel-Muhti). The motion was opposed by the
Government and eventually denied. (Doc. No. 1, Part 22, Suppl. Ex. 47).
However, it was not until April 26, 2002 that Petitioner was taken into
custody on the September 25, 1995 removal order. He has been in
continuous detention since that date. During the more recent
proceedings, Petitioner has given his date of birth as August 9, 1947
(Doc. No. 1, Part 2, verified habeas petition); July 17, 1944 (Doc. No.
10, Ex. G, attach, to motion to re-open); and September 1947 (Doc. No.
1, Part 17, Ex. 39, oral representation to IJ in 1994). November 25, 2002 Custody Review
While in custody, Petitioner filed a Request for Custody Review with
the Headquarters Post-order Detention Unit ("HQPDU"), which was denied in
a November 25, 2002, "Decision to Continue Detention." The HQPDU
Director/Designated Representative who reviewed Petitioner's request
stated as follows:
The Service has requested a travel document from the
Embassy of Jordan and the Embassy of Honduras. The
Embassy of Jordan has refused to issue a travel
document. The Embassy of Honduras has advised the INS
that they are still conducting an investigation in
Honduras to verify your information. However, it
should be noted that you have not provided sufficient
evidence to prove you [sic] nationality and identity.
In fact, you have given conflicting information during
three sworn statements. On March 31, 1965, you stated
that you were a U.S. citizen born in Puerto Rico. On
April 1, 1965, you stated that you were Honduran. On
November 5, 1975, you stated that you were Palestinian
born in Israel. Other information available to the INS
shows that you may have been born in Cuba.*fn3 You
have also used at least ten different aliases. It
would not be proper for the INS to release a person
whose identity can not [sic] be verified. You are
required to provide sufficient evidence to prove your
identity and nationality. You must also attempt to get
a travel document on your own behalf. You must contact
your Embassy and provide them with enough evidence to
secure a travel document.
(Doc. No. 17, Ex. B at 2). Thereafter, Petitioner's counsel continued
their efforts to secure travel documents from any country to which
Petitioner had a connection. A legal assistant, MacDonald Scott, met with
Ahmad Ibrahim, a man who knew Petitioner in Palestine and in New York;
had further conversations with the Honduran Consulate; contacted the
Palestinian Liberation Organization ("PLO") Mission in Washington, DC;
contacted the Egyptian consulate for possible entry into Palestinian
lands through that country; interviewed INS officials regarding a
chartered flight to Palestine via Egypt and the statistics of successful
Palestinian deportations; and contacted Monica Tarazi, an expert in the area, about the possibility of Israel
accepting Palestinian deportees. (Doc. No. 10, Exs. C & D, Aff. &
Suppl. Aff. of Scott).
November 25, 2003 Custody Review
On June 9, 2003, Petitioner filed another Request for Custody Review,
citing the lack of success in obtaining travel documents from the
Jordanian and Egyptian Governments as well as the refusal of the
Palestinian National Authority to issue documents. (Doc. No. 17, Ex. A).
A Post Order Custody Review was conducted on November 25, 2003. (Doc.
No. 17, Ex. F at 5). Petitioner was not present at the review and the
Reviewing Officer did not interview Petitioner at any time prior to
making his recommendation to continue detention. However, in filling out
the "Post Order Custody Review Worksheet," under the subsection
addressing "Travel Documents Status/History," the Reviewing Officer
listed the "aliens [sic] attempts to get travel documents and status (to
include any actions alien has taken to prevent removal . . .)" as
With respect to attempts to repatriate Petitioner to Jordan, the
Reviewing officer documented the following actions:
On May 20, 2002, a travel document request was
forwarded to the Consulate General of Jordan. The
presentation contained a copy of a birth certificate
provided Mr. Abdel-Muhti. On June 14, 2002, the
Consulate General of Jordan denied the travel document
On June 2002, a travel document request was sent
the Embassy of Jordan. On October 8, 2002, the
Hashemite Kingdom of Jordan refused to issue a
travel document stating that identity could not be
Id. at 5. The Reviewing Officer documented the following attempts that
were made to obtain travel documents from Palestine:
On March 6, 2003, Bret Bradford at BICE HQ advises
that Headquarters is attempting to procure a travel
document from the Palestine Mission in Washington, D.C.
On May 30, 2003, Bret Bradford at BICE HQ advised
that travel document still pending.
On September 30, 2003, I contacted BICE Headquarters
inquiring about the status of a travel document from
the Palestine Mission in Washington, D.C. Bret
Bradford advised that Abdel-Muhti's history of
providing fraudulent information concerning his
nationality is hindering BICE efforts in obtaining a
Id. The Officer also cited the following with respect to attempts made to
return Petitioner to Honduras:
On September 6, 2002, a travel document request was
forwarded to the Consulate General of Honduras. The
presentation contained a copy of a birth certificate
and number of Honduran Passport.
On October 11, 2002, Ms. Maximo at the Consulate
General of Honduras advised Officer Peralta that
subject's birth certificate and nationality must
be verified in Honduras.
On January 2003, the consular authorities in the
Consulate General of Honduras advised that they
are awaiting verification from Honduras regarding
On July 21, 2003, Ms. Maximo advised Officer
Gill that she had not heard anything from her
counterparts in Honduras and the travel document
request is still pending.
On August 4, 2003, I forwarded a travel document
request to the Embassy of Honduras.
On November 24, 2003, Tammy Cyr at BICE Headquarters
advised that she contacted the Honduran Embassy
regarding the Naturalization records to see if
Abdel-Muhti naturalized in Honduras. She requested
specific information regarding the birth certificate
that he provided to ascertain its validity.
Id. The Reviewing Officer further found that "[o]n January 16, 2003, in
an effort to secure information that could assist in the procurement of a
travel document, Form I-229 is served on Mr. Abdel-Muhti. He is advised [sic] his responsibilities in the travel
document process. Advised that he must assist and provide necessary data
and reveal his true and valid identity. Subject refused to sign and
acknowledge receipt of form." Id. The Reviewing Officer concluded that
"Mr. Abdel-Muhti has not established his compliance with the obligation
to effect his removal and to cooperate in the process of obtaining
necessary travel documents. It is the recommendation of this officer that
he remain in the custody of BICE pending his genuine cooperation and
subsequent issuance of travel documents." Id. at 7. On the same date that
the review was conducted, November 25, 2003, the "Deciding Official's
Custody Determination" was to continue Mr. Abdel-Muhti's detention. Id.
February 3, 2004 Notice of Failure to Comply
Until this Court issued an Order on January 21, 2004 directing the
Government to supplement the record and explain the rationale behind the
continued detention of Petitioner, no further proceedings were conducted
before the ICE. (See Doc. No. 16). Then, on February 3, 2004, the ICE
issued a Notice of Failure to Comply pursuant to 8 C.F.R. § 241.4(g) for
Petitioner's alleged refusal to cooperate and acting to prevent removal.
(Doc. No. 17, Ex. G). It was concluded therein that:
An investigation of your identity by the Government of
Honduras revealed that your purported birth
certificate is fraudulent. To date, you have provided
no additional evidence of your identity, nor have you
demonstrated any good faith efforts to obtain the
required documentation. . . . As you have failed to
make efforts to provide or obtain the required
evidence of identity, you have failed to comply with
your obligation and are acting to prevent your removal
from the United States.
(Doc. No. 17, ...