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Shalhoub v. U.S. Attorney General

June 1, 2010

RAMI SHALHOUB, PETITIONER
v.
U.S. ATTORNEY GENERAL, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Judge Caldwell

MEMORANDUM

I. Introduction

Rami Shalhoub, presently a detainee of the United States Immigration and Customs Enforcement (ICE), incarcerated at the York County Prison, in York, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Shalhoub, represented by counsel, challenges the extended nature of his pre-removal detention. For the reasons set forth below, Shalhub's amended petition for writ of habeas corpus will be denied.

II. Background

Rami Shalhoub is a native and citizen of Palestine. (Doc. 14-2, Respts.'

Exs. in Supp. of Resp. to Am. Habeas Corpus Pet. at p. 3).*fn1 In 2000, at the age of 17, Shalhoub entered Canada on a student visa. In 2002, after he applied for asylum using another person's name, he was removed from Canada through Israel and returned to Israel/the West Bank. (Doc. 13-4, Application for Asylum and for Withholding of Removal at pp. 8-9). Shalhoub resided there, primarily in Jerusalem and Talba, until 2005. (Id. at p. 8).

In 2005, while in the West Bank, Shalhoub paid his cousin Fadi Shalo, a dual Palestinian/Jordanian citizen, to use his identity to obtain a Jordanian passport in his name but bearing Shalhoub's photograph. (Id. at p. 9). Shalhoub then presented the false passport to the United States consulate in Jerusalem to obtain a B-2 visitor's visa. (Id.) He entered the United States on December 3, 2005, at the JFK airport, New York City, New York, under the name Fadi Jamal Mohammad Shalo. (Doc. 13-5, November 13, 2006, Warrant for Arrest of Alien at p. 2).

In 2006, Fadi Shalo, Shalhoub's cousin, went to the United States consulate in Jerusalem to obtain a visa for himself. At this point Shalhoub "came under investigation." (Doc. 13-4 at p. 9). On November 13, 2006, while working as a driver outside a Newark Liberty Airport terminal, Shalhoub refused to move his car when requested by a police officer. (Id.) The officer then checked his identity and he was immediately detained by ICE. (Id. and Doc. 13-5 at p. 2).

On November 13, 2006, ICE commenced removal proceedings against Shalhoub by issuing a Notice to Appear (NOA). See Doc. 5-2, Respts.' Exs. In Supp. Resp. to Pet. for Writ of Habeas Corpus, at pp. 3-4. He was charged with procuring his visa by using another individual's identity in order to gain unlawful entry into the United States. Id. Petitioner was released on bond shortly thereafter by an IJ. (Doc. 13-7, 11/21/06 Order of the IJ with respect to Custody, at p. 2).

Shalhoub was eventually arrested for (1) fraud and misuse of visas, permits and other documents, in violation of 18 U.S.C. §§ 1546(a) and 2, and (2) aggravated identity theft during and in relation to that fraud and misuse, in violation of 18 U.S.C. §§ 1028A(a)(1) and 2. (Doc. 13-8, April 18, 2007, Plea Agreement at p. 2; see also Doc. 13-13, Criminal Complaint). In exchange for his plea, the federal government agreed not to initiate any further criminal charges for fraud or identity theft in the District of New Jersey. (Doc. 13-8 at p. 2) On December 11, 2007, Shalhoub pleaded guilty to the above charges in the United States District Court for New Jersey, and was sentenced to 25 months incarceration. (Doc. 13-4 at p. 9). Shalhoub was released from criminal custody on November 7, 2008. (Id.)

On July 28, 2008, ICE charged Shalhoub with additional grounds of deportability under 8 U.S.C. § 1227(a)(2)(A)(iii) based on his December 2007 conviction suggesting he had committed an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(P). (Doc. 5-2 at p. 7). On August 11, 2008, Shalhoub appeared before an IJ and accepted a final order of removal order to Israel or through the Palestinian Territories, but also made clear at the time that he was fearful of being returned to Jordan. The IJ ordered him removed from the United States to Israel, but not to Jordan. (Doc. 5-2, August 11, 2008, IJ Order, at p. 9). (Doc. 13-4 at p. 9). He was released from criminal custody on November 7, 2008 and immediately taken into ICE custody. (Doc. 13-4 at p. 9; Doc. 14-2, HQ POCR Checklist for 241-4 Reviews, p. 17).

On February 23, 2009, Shalhoub received his 90 day review. (Doc. 5-2, Decision to Continue Detention, at p. 10). ICE determined that he should remain in custody because ICE was working with the Consulate General of Israel and the Palestinian Liberation Organization (PLO) for permission to return him to the Palestinian Territories. (Id.) Shalhoub was notified that if he was not released or removed from the United States by May 13, 2009, jurisdiction of the custody decisions in his case would be transferred to the Headquarters Case Management Unit (HQCMU). (Id.) Based on Shalhoub's continued detention, his case was transferred to HQCMU on that date. (Doc. 14-2, HQ POCR Checklist for 241-4 Reviews, p. 17).

Since November 21, 2008, ICE has attempted to obtain the necessary verifications and documents to remove Shalhoub. (Id.). On February 18, 2009, ICE was waiting for permission to remove Shalhoub through Israel, only to learn on February 23, 2009, the PLO indicated they would issue a travel document for Petitioner once Israel granted him permission to transit through that country. (Id.) A few months later, Israel indicated it would not permit Shalhoub transit through Israel to the enter the West Bank. (Id.) Confronted by this impasse, ICE then attempted to obtain permission from Jordan to permit ICE to remove Shalhoub by entering the Palestinian Authority Territories through Jordan. (Doc. 14-2, Mot. to Reopen Proceedings before IJ, pp. 18 - 19).

On September 16, 2009, the IJ reopened Shalhoub's removal proceedings clarifying to both parties that they had misconstrued the earlier August 11, 2008, Order. (Doc. 14-2, IJ Order of September 16, 2009, pp. 21-22). "At that time, in an effort to facilitate the matter, the court suggested and the parties agreed, that the order of removal to Israel would be final but if Israel ultimately refused to issue travel documents to permit respondent's removal to that country or in transit to the Palestinian Territories, either party could seek reopening, and respondent could seek protection from being removed to Jordan. Now that the government is presently stymied from removing respondent to Israel, we find ourselves back to the point where respondent refuses to cooperate with his removal to Jordan." (Id. at p. 21)(footnote omitted). The IJ noted that "[t]his respondent was fully aware at the time the order was issued that he would have the opportunity of seeking protection from removal to Jordan should the government fail to remove him to Israel. fn2: While respondent's present counsel laments the fact that her client has been held in ICE custody for one year while his removal to Israel was sought, there is no knowledge by this court that the process could have been accomplished in a shorter ...


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