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Khouzam v. Hogan

June 15, 2007

SAMEH SAMI S. KHOUZAM, PETITIONER
v.
THOMAS H. HOGAN, ET AL., RESPONDENTS



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

Sameh Sami S. Khouzam, an alien, has petitioned the Court for a writ of habeas corpus to set aside the Secretary of Homeland Security's decision to revoke his deferral of removal based on diplomatic assurances from the Government of Egypt that Khouzam would not be tortured if he were removed to Egypt. Respondents, legal custodians of Khouzam, assert that the federal courts lack jurisdiction to consider Khouzam's claims; the petition presents non-justiciable political questions; and the petition fails to state a claim on which relief may be granted. Contrary to Respondents' assertions, I find that Khouzam has presented justiciable issues falling within this Court's habeas corpus jurisdiction. I further find that the stay of removal, imposed temporarily by this Court's Orders of May 31 and June 6, 2007, shall remain in effect pending the conclusion of this case.

I. BACKGROUND

Khouzam, a citizen of Egypt, arrived at New York's John F. Kennedy Airport on February 11, 1998. While he was en route, the Department of State for the United States cancelled Khouzam's visa based on information received by Egyptian authorities that he had allegedly committed a murder shortly before his departure from Egypt. Khouzam was denied admittance upon his arrival because he lacked a valid immigration visa or entry document under section 212(a)(7)(A)(i) of the Immigration and Nationality Act (the "INA"), 8 U.S.C. § 1182(a)(7)(A)(i), and was detained.

Khouzam subsequently applied for asylum and withholding of removal under sections 208 and 241 of the INA, 8 U.S.C. §§ 1158, 1231, claiming he feared persecution as a Coptic Christian if he were returned to Egypt. He also timely filed an application for relief under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "CAT") based on a danger of being subjected to torture if he were sent back to Egypt.

An immigration judge in New York found that Khouzam was statutorily precluded from asylum and withholding of removal under sections 208(b)(2)(A)(iii) and 241(b)(3)(B)(iii) of the INA, 8 U.S.C. §§ 1158(b)(2)(A)(iii), 1231(b)(3)(B)(iii) because there were substantial grounds for believing that Khouzam had committed a serious nonpolitical crime outside the United States. (Resp'ts' Resp. Ex. B (Dkt. Entry 9) at 000176.) The immigration judge, however, after finding that "the evidence is overwhelming that [Khouzam] will more likely than not be subjected to torture by a responsible Egyptian government official," held that Khouzam was entitled to deferral of removal under the CAT. (Id. at 000176, 000499.)

The Board of Immigration Appeals (the "Board") affirmed the immigration judge's denial of asylum and withholding of removal. (Id. at 000124-000125.) The Board, however, later reconsidered its decision and determined that CAT protection was not applicable to Khouzam because the threatened torture would be related to his prosecution for murder and would not have an illicit purpose. (Id. at 000080.) Consequently, the Board ordered Khouzam removed from the United States. (Id. at 000079-000080, 000004-000005.)

Khouzam timely appealed the Board's decisions to the United States Court of Appeals for the Second Circuit.*fn1 The Court of Appeals denied Khouzam's petition for review insofar as it challenged the Board's asylum and withholding decision, finding that there were serious reasons to believe that Khouzam committed a crime. Khouzam v. Ashcroft, 361 F.3d 161, 166 (2d Cir. 2004). As to the denial of deferral of removal, however, the court found that the Board erred in deciding that torture related to a criminal prosecution is not protected under CAT. Id. at 169-70. The Court also concluded that "Khouzam will more likely than not be tortured if he is deported to Egypt." Id. at 171. Consequently, the Court vacated the Board's decision denying Khouzam relief under CAT. Id. On remand, the Board ordered that Khouzam's removal to Egypt be deferred.*fn2

Khouzam remained in the custody of the United States Immigration and Customs Enforcement (the "ICE") in New Jersey until February of 2006, when a New Jersey federal court granted his habeas petition for release. (Pet'r's Pet. Ex. 2 (Dkt. Entry 1).) Khouzam thereafter resided in Pennsylvania. As a condition of his release, Khouzam was required to report monthly to the ICE office located at the York County Prison. (Id.)

While reporting for a regular check-in with ICE on May 29, 2007, Khouzam was detained by ICE authorities and informed that his deferral of removal under CAT had been terminated four months earlier based on diplomatic assurances from the Government of Egypt that he would not be tortured.*fn3 (Resp'ts' Resp. Ex. F.) Khouzam was eligible for removal to Egypt as early as June 1, 2007. (Id.)

In a letter stamped and delivered May 29, 2007, Assistant Secretary of ICE, Julie L. Myers, informed Khouzam's counsel:

Consistent with the procedures set forth at 8 C.F.R. §§ 1208.18(c) and 208.18(c), I have credited as sufficiently reliable the diplomatic assurances received by the Department of State from the Government of Egypt that your client, Mr. Khouzam, would not be tortured if removed there. The Secretary of Homeland Security has, therefore, in accordance with 8 C.F.R. §§ 1028.17(f) and 208.17(f), terminated Mr. Khouzam's deferral of removal to Egypt, effective January 24, 2007. The Department of Homeland Security will not remove Mr. Khouzam to Egypt prior to June 1, 2007. (Resp'ts' Resp. Ex. G (Dkt. Entry 9).)

In an undated "Memorandum to File," Assistant Secretary Myers recorded the following details regarding the decision to terminate Mr. Khouzam's deferral of removal:

The Department of State obtained, and forwarded to the Deputy Secretary of Homeland Security, diplomatic assurances from the government of Egypt that Mr. Khouzam would not be tortured if removed there. After consulting with the Department of State and taking into account all relevant considerations, including human rights practices in Egypt, I determined, consistent with the procedures set forth at 8 C.F.R. §§ 1208.18(c) and 208.18(c), that the assurances were sufficiently reliable to allow for Mr. Khouzam's removal to Egypt, consistent with U.S. obligations under Article 3 of the Convention Against Torture.

Having credited the diplomatic assurances received from Egypt, I recommended to the Secretary of Homeland Security that he terminate Mr. Khouzam's deferral of removal. After review of my decision to credit the diplomatic assurances and my recommendation to terminate deferral of removal, the Secretary of Homeland Security approved the recommendation, thereby terminating, in accordance with §§ 1208.17(f) and 208.17(f), Mr. Khouzam's deferral of removal to Egypt, effective January 24, 2007. (Resp'ts' Resp. Ex. G (Dkt. Entry 9).)

Respondents have also submitted a declaration by James F. Jeffrey, Principal Assistant Secretary of State for the Bureau of Near Eastern Affairs, explaining the State Department's role in obtaining assurances from the Egyptian government that Khouzam would not be tortured if he is removed to Egypt. (Resp'ts' Resp. Ex. H (Dkt. Entry 9).) According to Jeffrey:

[T]he Government of Egypt provided formal written assurances that Mr. Khouzam will not be tortured if he is removed to Egypt.

After careful review by the relevant State Department bureaus, including experts in the fields of Egyptian relations, human rights, and international law, the Department determined and formally conveyed its view to the Department of Homeland Security that the assurances received from the Government of Egypt regarding the treatment of Mr. Khouzam were of sufficient reliability to enable the Secretary of Homeland Security to conclude that Mr. Khouzam could be removed to Egypt without running afoul of U.S. treaty obligations. (Id.) Jeffrey also expressed concern that judicial review of the Executive branch's decision to credit assurances of foreign governments could undermine foreign relations and hinder the Department of State's ability to press other countries to comply with diplomatic requests.

On May 30, 2007, Khouzam filed an emergency motion for stay of removal with the United States Court of Appeals for the Second Circuit, Khouzam v. Ashcroft, No. 02-4109 (2d Cir. filed May 30, 2007), and an "Emergency Petition for a Writ of Habeas Corpus, Declaratory Judgment, Writ of Mandamus, and for Stay of Removal" with this Court (Dkt. Entry 1). On May 31, 2007, after conducting a telephonic conference with counsel for both parties, this Court stayed Khouzam's removal until June 7, 2007. (Dkt. Entry 7.) On June 4, 2007, the United States Court of Appeals denied Khouzam's motion for a stay of removal as moot. Khouzam v. Ashcroft, No. 02-4109 (2d Cir. filed June 4, 2007). This Court subsequently extended the stay of Khouzam's removal through June 18, 2007, to ...


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