The opinion of the court was delivered by: Judge Vanaskie
At the center of this habeas corpus proceeding lies an Egyptian diplomatic assurance that Petitioner Sameh Sami S. Khouzam, an alien presently in custody in a prison in York County, Pennsylvania, will not be tortured if returned to Egypt, where allegedly he has been convicted in absentia of murder. Respondents, the legal custodians of Khouzam (sometimes referred to herein as the Government), assert that the diplomatic assurance preempts a prior judicial determination that it is probable that Khouzam will be tortured if removed to Egypt. See Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004). Khouzam, a Coptic Christian who made a credible showing that he had been the victim of torture at the hands of Egyptian law enforcement officials before fleeing to the United States, essentially presents three challenges to his removal to Egypt: First, he argues that the Government's reliance upon a diplomatic assurance from Egypt violates the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 ("CAT"), as implemented in the United States by the Foreign Affairs Reform and Restructuring Act ("FARRA"), Pub. L. No. 105-277, Div. G., Title XXII, § 2242, 112 Stat. 2681-822 (Oct. 21, 1998) (codified as Note to 8 U.S.C. §1231). He next contends that, even if there is no categorical prohibition against Egyptian diplomatic assurances, the Government failed to comply with applicable regulations implementing FARRA. Finally, he asserts that the Government's refusal to allow any review of the diplomatic assurance is contrary to congressional intent expressed in FARRA as well as the Fifth Amendment's Due Process Clause.
Having carefully considered the thoroughly-briefed arguments of the parties, I have concluded that diplomatic assurances from States regarded as routinely engaging in torture, such as Egypt, do not, per se, violate CAT or FARRA. I have also found that there is a substantial question of fact as to whether the Government complied with the regulations concerning deportation on the basis of a diplomatic assurance. Finally, I have determined that the Government's refusal to expose the Egyptian diplomatic assurance to review by any impartial tribunal is not consonant with congressional intent expressed in FARRA, and that, even if FARRA did not require an opportunity to challenge the Government's reliance upon the diplomatic assurance, Khouzam's right to be free from torture is such that the Due Process Clause mandates a fair process that includes review of the diplomatic assurance by an impartial adjudicator. In light of the Government's refusal to expose the Egyptian diplomatic assurance to any sort of impartial review, the Government may not proceed with the removal of Khouzam. Accordingly, his habeas corpus petition will be granted. Because there is no probability that Khouzam will be removed from the United States in the reasonably foreseeable future, the Government will be ordered to release him subject to appropriate terms and conditions.
Khouzam, a national and citizen of Egypt, sought to enter the United States on February 11, 1998. Admission was denied because his non-immigrant visa had been canceled after Egyptian authorities notified the United States that Khouzam was suspected of murdering an Egyptian woman. Khouzam was taken into custody, and removal proceedings were commenced.
On May 4, 1998, an Immigration Judge (IJ), having concluded that there were substantial grounds for believing that Khouzam had committed a serious non-political crime in Egypt, ruled that Khouzam was statutorily ineligible for asylum or withholding of removal under sections 208(b)(2)(A)(iii) and 241(b)(3)(B)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1158(b)(2)(A)(iii) and 1231(b)(3)(B)(iii). (Response to Habeas Corpus Pet., Dkt. Entry 9, at 000874-84.) On January 4, 1999, the Board of Immigration Appeals (BIA) affirmed the IJ's determination that there were substantial reasons to believe that Khouzam had committed a serious non-political crime outside the United States prior to his arrival in the United States. (Id. at 000722-24) The BIA also rejected Khouzam's request to remand the matter to the IJ for consideration of additional evidence. (Id.)
On July 18, 1999, Khouzam moved to re-open the proceedings in order to allow him to apply for relief under Article 3 of CAT. In a decision dated July 26, 1999, the BIA granted the motion to re-open, explaining that Khouzam was eligible to seek such relief under recently promulgated rules of the Department of Justice implementing § 2242 of FARRA. (Id. at 000707-08.) The BIA Order indicated that both Khouzam and the Government could present "additional evidence" on the issue of "Khouzam['s] eligibility for relief from deportation pursuant to [CAT] as set forth in the interim regulations." (Id. at 000708.)
In a written decision dated January 14, 2000, the IJ summarized the testimony presented by Khouzam and an expert witness called by Khouzam to testify to conditions existing in Egypt at that time. (Id. at 000489-500.) As related by the IJ, Khouzam testified to a number of incidents during which he was subjected to cruel and inhumane treatment by Egyptian law enforcement officers. These incidents included the insertion of rubber hoses up his rectum, being stabbed in the stomach with a screw driver, and physical beatings resulting in injuries that required surgical intervention. Khouzam attributed these incidents to his adherence to the Coptic Christian religion in the face of demands that he convert to Islam.
According to Khouzam, the efforts to compel his conversion included a false accusation that he had sexually assaulted a co-worker in 1997, resulting in his fleeing Egypt along with his wife to the United States. Khouzam claimed that he returned to Egypt only after being informed that his mother had been detained by Egyptian authorities for assisting him in leaving Egypt.
A final encounter with Egyptian authorities, according to Khouzam, resulted in his escaping police custody by climbing out of a bathroom window at the hospital where he had been taken for treatment of an injured hand. The injury had occurred during a melee when he was assaulted for refusing to marry the woman that he had been accused of sexually assaulting.
Although finding Khouzam's testimony less than fully credible, the IJ credited the expert witness evidence concerning conditions existing in Egypt, especially in relation to Coptic Christians. The IJ concluded:
The court has considered the country conditions in Egypt, including the long history of discrimination against Christians in Egypt by the government, the continued violence against Christians by Islamic zealots and occasionally by the security forces and police, and the often-time abusive conditions of its detainees and inmates. Such evidence exists in the form of documents authored by the United States government, and through the testimony of a witness acknowledged by [the Government] for his expertise in the area under scrutiny by this court. Taken together, the evidence is overwhelming that [Khouzam] will more likely than not be subjected to torture by a responsible Egyptian government official who will breach his duty and engage in the torture of [Khouzam], or at the least, will abdicate such duty by acquiescing in such torture. . . . (Id. at 000499-500; emphasis added.) In granting deferral of removal, the IJ provided the following notice to Khouzam:
(i) Deferral does not confer any lawful or permanent status in the United States;
(ii) Deferral will not necessarily result in the alien being released from custody . . . if the alien is subject to such custody;
(iii) Deferral is effective until terminated;
(iv) Deferral is subject to review and termination if the immigration judge determines that it is not likely that the alien would be tortured in the country to which removal has been deferred, or if the alien requests that deferral be terminated. (Id. at 500.) The IJ further wrote that "the Secretary of State may, in her discretion, seek diplomatic assurances from the Egyptian government that [Khouzam] would not be tortured if he is returned there, and then, in consultation with the Attorney General, may separately assess the adequacy of such assurances." (Id.) The IJ explained that, in such a case, a diplomatic assurance "would override this court's Order deferring removal." (Id.)
In a decision dated July 24, 2000, the BIA affirmed the deferral of removal, stating: In light of the evidence that the Egyptian authorities routinely torture and abuse suspected criminals and the medical evidence indicating that [Khouzam] has scars and injuries which are consistent with past torture, we agree with the Immigration Judge that the respondent has established that it is more likely than not that he would be tortured if returned to Egypt. (Id. at 000452.) In rejecting the Government's argument that the "high profile" nature of the criminal case against Khouzam precluded a finding that he likely would be tortured, the BIA also noted that "the Secretary of State may seek diplomatic assurances from the Egyptian government that [Khouzam] would not be tortured if he was returned there, and then in consultation with the Attorney General determine whether such assurances are sufficiently reliable to terminate deferral of removal and allow . . . removal consistent with Article 3 of [CAT]." (Id.)
Although receiving relief in the form of a deferral of removal, Khouzam persisted in claiming that he was entitled to asylum or withholding of removal, petitioning the Court of Appeals for the Second Circuit for review of the denial of this more expansive relief. Pursuant to a stipulation entered into between the parties while the matter was pending before the Second Circuit, the case was remanded "to determine, based on any new evidence that may be presented, whether 'there are serious reasons to believe that [Khouzam] committed a serious nonpolitical crime outside the United States.'" (Id. at 000178.)
In an oral decision dated October 26, 2001, the IJ reaffirmed the earlier decision that Khouzam "is not eligible for asylum or withholding of removal as a matter of law . . . ." (Id. at 000199.) In an opinion dated March 7, 2002, the BIA again affirmed the IJ, explaining:
The [Government] presented properly certified documents from the Egyptian ministry of foreign affairs, obtained by the United States Embassy in Cairo, Egypt, related to a murder allegedly committed by [Khouzam] prior to his departure from Egypt. The documents were originally received as part of a request for [Khouzam's] extradition by the Egyptian government. The documents include police reports and an arrest warrant relating to him. The Immigration Judge correctly concluded that the rebuttal evidence submitted by [Khouzam] in the form of documents and the testimony of two expert witnesses was unconvincing, in that it did not establish that the mistreatment of Coptic Christians in Egypt includes framing them on false charges.
[Khouzam] also failed to establish any egregious procedural irregularity in the creation of the documents that would indicate that the charges against him were falsified. (Id. at 000125.)
Claiming error in the decision to defer removal, the Government asked the BIA to reconsider that aspect of its earlier decision. In a decision dated May 7, 2002, the BIA granted the Government's motion for reconsideration, concluding that subsequent to its July 24, 2000, decision affirming the grant of deferral of removal, a change in the law had occurred with respect to CAT claims. Specifically, the BIA found that, because Khouzam would be detained pursuant to criminal process, any pain or suffering he may endure incident to a lawful sanction did not merit CAT relief. The BIA wrote:
In this case, [Khouzam] is essentially fleeing prosecution for a crime that he allegedly committed in Egypt. His detention and any acts perpetrated against him would therefore arise from a lawful sanction and would not have an illicit purpose. . . . In this case, [Khouzam] stands accused of a serious crime and the Egyptian government has an interest in detaining him prior to his trial, to insure that he does not flee the country again prior to that trial. [Khouzam] did not establish that the Egyptian government would detain him for any other proscribed purpose. (Id. at 000080.)
Khouzam then petitioned the Second Circuit for review of the denial of all relief. Although finding that the evidence was sufficient to support the BIA's determination that there were serious reasons to believe that Khouzam committed murder, thus making Khouzam ineligible for asylum or withholding of removal, the Second Circuit found that the BIA had erred in vacating its earlier decision that had granted Khouzam deferral of removal. Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004). In explaining this result, Judge Cardamone, writing for a unanimous panel, stated:
The fact that Khouzam has been accused of a crime does not in itself render any acts inflicted against him incapable of constituting torture. Further, the BIA's July 24, 2000 finding that the Egyptian police have routinely tortured, abused, and killed suspected criminals to extract confessions is completely at odds with the BIA's conclusion that the state action requirement has not been met.
Applying the correct legal standard to the BIA's findings de novo, we conclude, as the BIA itself previously did, that Khouzam will more likely than not be tortured if he is deported to Egypt. To the extent that the Egyptian police are acting in their official capacities -- as is strongly suggested by the fact that their goal is to extract confessions -- then the acts are carried out 'by . . . a public official . . . acting in an official capacity.' (CAT Art. 3) To the extent that these police are acting in their purely private capacities, then the 'routine' nature of the torture and its connection to the criminal justice system supply ample evidence that higher-level officials either know of the torture or remain willfully blind to the torture and breach their legal responsibility to prevent it.
Accordingly, the court vacated the BIA's May 7, 2002 decision denying relief under CAT. On June 23, 2004, the BIA implemented the Second Circuit ruling by granting Khouzam's request for deferral of removal.
Khouzam continued to be held in custody by the Bureau of Immigration and Customs Enforcement (BICE) following the Second Circuit ruling. On February 6, 2006, acting on a habeas corpus challenge to the validity of Khouzam's continuing detention, the Honorable Dennis M. Cavanaugh of the District of New Jersey, the judicial district where Khouzam was being held, ordered Khouzam's release, finding that there was no significant likelihood of Khouzam's removal in the reasonably foreseeable future. (Exhibit 2 to the Habeas Corpus Petition, Dkt. Entry 1.) Having informed Judge Cavanaugh that, if released, he would live in York, Pennsylvania, Khouzam was directed to report to the BICE facility in that area in accordance with applicable reporting requirements.
On May 29, 2007, while reporting as required at the BICE facility in York, Khouzam was taken into custody and informed that his deferral of removal had been terminated four months earlier based on diplomatic assurances from the Government of Egypt that he would not be tortured. Khouzam was informed that he would be removed to Egypt as early as June 1, 2007.
According to the Declaration of Robert K. Harris, Assistant Legal Adviser for Human Rights and Refugee Law in the Office of the Legal Adviser of the U.S. Department of State, a letter from the Under Secretary of State for Political Affairs was sent to the Deputy Secretary of the Department of Homeland Security on August 7, 2006, asserting that "assurances received from the Government of Egypt regarding the treatment of . . . Khouzam were of sufficient reliability to enable the Secretary of Homeland Security to conclude that if Mr. Khouzam were removed to Egypt with these assurances, it would not be more likely than not that he would be tortured." (Exhibit 1 to the Government's Reply Memorandum, Dkt. Entry 59.) According to an unauthenticated file memorandum of Julie L. Myers, Assistant Secretary of the Department of Homeland Security, the Secretary of Homeland Security elected to credit the diplomatic assurances and terminate the deferral of removal, effective January 24, 2007. (Exhibit E to the Response to the Habeas Corpus Petition, Dkt. Entry 9.)*fn1
On May 30, 2007, Khouzam, now incarcerated within this District, filed in this Court an emergency petition for writ of habeas corpus and a request for stay of removal.*fn2 On May 31, 2007, this Court temporarily stayed Khouzam's removal. (Dkt. Entry 7.) On June 15, 2007, this Court issued a written decision denying the Government's motion to dismiss this action for lack of subject matter jurisdiction.*fn3 The June 15th decision also stayed Khouzam's removal pending the outcome of this action.
On June 22, 2007, Khouzam, through counsel, moved to compel his release from confinement. (Dkt. Entry 31.) That motion has been fully briefed. In addition, the parties filed comprehensive memoranda of law along with various declarations and affidavits concerning the substantive merits of Khouzam's claims. Oral argument was held on August 30, 2007.*fn4
A. CAT, FARRA and Implementing Regulations
"[T]he right to be free from official torture is fundamental and universal, a right deserving of the highest status under international law, a norm of jus cogens."*fn5 Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 717 (9th Cir. 1992). "A state violates international law if, as a matter of state policy, it practices, encourages, or condones . . . torture or other cruel, inhuman, or degrading treatment or punishment . . . ." RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 702 (1987). As our Court of Appeals has observed, "'[i]n light of the universal condemnation of torture in numerous international agreements, and the renunciation of torture as an instrument of official policy by virtually all of the nations of the world (in principle if not in practice), . . . an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations." Zubeda v. Ashcroft, 333 F.3d 463, 479-80 (3d Cir. 2003), quoting Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980).*fn6
Article 3 of CAT provides:
1. No State Party shall expel, return ('refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." CAT, Art 2.
President Reagan signed CAT on behalf of the United States on April 18, 1988. The Senate, in October of 1994, gave its advice and consent to the ratification of CAT, subject to certain reservations, understandings, and declarations. S. Exec. Rep. No. 101-30 (1990) (Resolution of Advice and Consent to Ratification). The declarations relevant here are that Articles 1 through 16 of CAT are not self-executing, thus requiring implementing domestic legislation, and that the United States recognizes the competence of the Committee against Torture only with respect to the Committee's receipt and consideration of communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under CAT.*fn7 In addition, the Senate ratified CAT with the express understanding that the phrase, ...