On Petition for Review of a Decision of the Department of Homeland Security A75-795-693. On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 07-cv-00992) District Judge: Honorable Thomas I. Vanaskie.
The opinion of the court was delivered by: Rendell, Circuit Judge
Before: RENDELL, SMITH, and FISHER, Circuit Judges.
Sameh Sami S. Khouzam, a citizen of Egypt and a Coptic Christian, challenges the legality of his detention and imminent removal based on diplomatic assurances by Egypt that he would not be tortured if he was returned. In 1998, Khouzam was denied admission to the United States and taken into custody upon arriving without proper documentation. After years of proceedings, Khouzam was granted relief from removal because it was more likely than not that he would be tortured if returned to Egypt. His removal was deferred, rather than withheld, because there were serious reasons to believe that he committed a murder prior to departing Egypt. Khouzam was released from custody in 2006. In 2007, without notice or a hearing, the Department of Homeland Security ("DHS") again detained Khouzam, and prepared to remove him based on diplomatic assurances by Egypt that he would not be tortured. Khouzam filed an emergency habeas petition in the District Court for the Middle District of Pennsylvania, and a petition for review in this Court, arguing that the DHS's actions were unlawful. The District Court granted Khouzam's habeas petition after concluding, in a comprehensive, thoughtful opinion, that Khouzam was denied due process. The Government appeals that ruling.
The arguments before us may be summarized as follows: Khouzam argues that (1) the Government violated certain statutes and the Due Process Clause by failing to provide him a hearing to test the reliability of the diplomatic assurances; (2) diplomatic assurances from Egypt are categorically unreliable; and (3) the Government failed to comply with relevant regulations. The Government argues, in the alternative, that (1) federal courts lack jurisdiction to consider Khouzam's claims; (2) Khouzam's claims are non-justiciable; (3) Khouzam received all of the process to which he was entitled; and (4) the Government complied with all relevant regulations.
We will find for Khouzam for the reasons discussed at length below. We will reverse the District Court's order granting the habeas petition because we disagree with the Court's conclusion that habeas relief was available. However, we will grant Khouzam's petition for review because we agree with the District Court that he was denied due process. We will accordingly remand the matter to the Board of Immigration Appeals ("BIA") for further proceedings consistent with this opinion.
A. History of the Proceedings
This matter comes to us after proceedings that spanned a decade. On February 10, 1998, Khouzam boarded a plane in Egypt bound for New York. While Khouzam was in transit, Egyptian authorities notified the State Department that he allegedly committed a murder shortly before leaving the country. U.S. officials accordingly cancelled Khouzam's visa, detained him upon arrival, and initiated removal proceedings because, with his visa cancelled, Khouzam lacked the requisite documentation.
The complex proceedings that followed may be summarized for present purposes. Khouzam sought to avoid removal by applying for asylum, withholding of removal, and later for relief under the statutes and regulations implementing the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"). See Sen. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. In proceedings ultimately concluding in a decision by the United States Court of Appeals for the Second Circuit in 2004, Khouzam was denied asylum and withholding of removal based on a determination that there were "serious reasons" to believe that Khouzam had committed a homicide before leaving Egypt. Khouzam v. Ashcroft, 361 F.3d 161, 166 (2d Cir. 2004).*fn1 However, the Court also determined that Khouzam was eligible for relief under CAT based on a finding by the Immigration Judge ("IJ") that there was "overwhelming" evidence that Khouzam would be subjected to torture in Egypt, and a subsequent determination by the BIA that:
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 [Khouzam] has established that it is more likely than not that he would be tortured if returned to Egypt.
Id. at 169, 171.*fn2 Because there were serious reasons to believe Khouzam committed a murder, however, his relief under CAT was limited to deferral of removal instead of the more permanent relief of withholding of removal.*fn3
Khouzam subsequently challenged his continuing confinement through a petition for a writ of habeas corpus filed in the District of New Jersey, the jurisdiction where he was detained. On February 6, 2006, after Khouzam had been in custody for eight years, the Court granted the petition after concluding that "there was no significant likelihood of [Khouzam's] removal in the reasonably foreseeable future." (JA 190.) As a condition of release, Khouzam was required to report regularly to a Bureau of Immigration and Customs Enforcement ("ICE") facility in York, Pennsylvania, the city where Khouzam intended to reside.
When Khouzam reported to the ICE facility on May 29, 2007, he was retaken into custody and informed that he was subject to imminent deportation. Khouzam's counsel received the following explanation in a letter of the same date from Julie L. Myers, the DHS Assistant Secretary for the ICE:
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. §§ 1208.17(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.
(JA 52.) The Government provided no prior notice to Khouzam regarding the diplomatic assurances. Nor did the Government provide Khouzam any opportunity to review the assurances, or to present evidence or arguments challenging the assurances before an IJ, the BIA, or any other body.
On May 30, 2007, Khouzam filed an emergency petition for a writ of habeas corpus and a stay of his removal in the District Court for the Middle District of Pennsylvania. Khouzam argued, inter alia, that the Government's actions violated the prior order granting CAT relief and deprived him of his due process rights. Khouzam later added a claim that the Government failed to comply with the regulatory procedures for invoking diplomatic assurances. The District Court temporarily stayed Khouzam's removal on May 31, 2007. On June 22, 2007, Khouzam filed a motion to compel his release, arguing that his continued indefinite detention was not justified.
On June 26, 2007, Khouzam also filed a petition for review in this Court, challenging the termination of his deferral of removal on grounds similar to those argued in his habeas petition. We issued an order on December 12, 2007, explaining that we would delay consideration of Khouzam's petition for review until after the District Court ruled on the habeas petition. We also explained that the cases would be consolidated if either party appealed the habeas ruling.
On January 10, 2008, the District Court granted Khouzam's habeas petition. Khouzam v. Hogan, 529 F. Supp. 2d 543, 571 (M.D. Pa. 2008). As a threshold matter, the Court determined that it had jurisdiction over the habeas petition notwithstanding certain statutory provisions that could be construed to restrict the availability of this relief. The Court then determined that the DHS violated the Due Process Clause of the Fifth Amendment by failing to afford Khouzam notice and an opportunity to be heard on the sufficiency of Egypt's diplomatic assurances. Id. at 570. The Court vacated the termination and ordered Khouzam to be released, once again because there was no significant likelihood that he would be removed in the reasonably foreseeable future. Id. On January 14, 2008, both the District Court and this Court denied motions by the Government to stay Khouzam's release.
We now have consolidated before us the Government's appeal from the District Court's grant of Khouzam's habeas petition, and Khouzam's petition for review of the DHS's decision to terminate his deferral of removal.
B. Relevant Provisions Implementing CAT
At the heart of this case lie certain statutory and regulatory provisions implementing CAT in the United States, a treaty which was ratified by the Senate in 1990. S. Exec. Rep. No. 101-30, at 29-31 (1990). Article 3 of CAT provides, without exception, that "[n]o 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." Sen. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85.*fn4 On October 21, 1998, President Clinton signed into law the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA"), Pub. L. 105-277, div. G, § 2242, 112 Stat. 2681, 2681-822 (codified as note to 8 U.S.C. § 1231), which was enacted by Congress to give Article 3 of CAT "wholesale effect" domestically. See Medellin v. Texas, 128 S.Ct. 1346, 1365 (2008).
FARRA establishes that, It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.
FARRA § 2242(a). Congress accordingly required "the heads of the appropriate agencies" to prescribe implementing regulations. Id. § 2242(b). Congress also directed that, "[t]o the maximum extent consistent with the obligations of the United States under the Convention" the regulations "shall exclude from the protection of such regulations aliens described in section 241(b)(3)(B) of the [INA]." Id. § 2242(c). This group of aliens includes any alien for whom "there are serious reasons to believe that [he or she] committed a serious nonpolitical crime outside the United States before [he or she] arrived in the United States." INA § 241(b)(3)(B)(iii); 8 U.S.C. § 1231(b)(3)(B)(iii).*fn5
FARRA further provides that "[n]otwithstanding any other provision of law, and except as provided" in the implementing regulations themselves, "no court shall have jurisdiction to review the regulations adopted to implement" the provisions of section 2242. FARRA § 2242(d). Congress also directed that "nothing in [§ 2242] shall be construed as providing any court jurisdiction to consider or review claims raised under the [CAT or § 2242], or any other determination made with respect to the application of the policy [stated in § 2242(a)], except as part of the review of a final order of removal pursuant to section 242 of the [INA]." Id.
The Department of Justice ("DOJ") accordingly promulgated regulations that established procedures for raising a CAT claim. Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478 (Feb. 19, 1999). Under these regulations an alien is entitled to protection from removal if the alien can prove "that it is more likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 1208.16(c)(2)-(3).*fn6
Section 1208.18(c) establishes procedures for the use of diplomatic assurances, and reads in full:
Diplomatic assurances against torture obtained by the Secretary of State.
(1) The Secretary of State may forward to the Attorney General assurances that the Secretary has obtained from the government of a specific country that an alien would not be tortured there if the alien were removed to that country.
(2) If the Secretary of State forwards assurances described in paragraph (c)(1) of this section to the Attorney General for consideration by the Attorney General or her delegates under this paragraph, the Attorney General shall determine, in consultation with the Secretary of State, whether the assurances are sufficiently reliable to allow the alien's removal to that country consistent with Article 3 of the Convention Against Torture. The Attorney General's authority under this paragraph may be exercised by the Deputy Attorney General or by the Commissioner, Immigration and Naturalization Service,*fn7 but may not be further delegated.
(3) Once assurances are provided under paragraph (c)(2) of this section, the alien's claim for protection under the Convention Against Torture shall not be considered further by an immigration judge, the Board of Immigration Appeals, or an asylum officer.
Id. § 1208.18(c). Section 1208.18 provides no limitations on when diplomatic assurances may be invoked, either in terms of particular categories of aliens, or the status of an alien's CAT claims in the adjudicatory process. It stands apart as a separate process that may be followed by the ...