U.S. DISTRICT COURT U.S. District Court, Western District ......11/30/2015 10 JOINT MOTION to Amend...

3/13/2019 CM/ECF LIVE(C) - U.S. District Court:nywd

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?108096671852907-L_1_0-1 1/6

HABEAS,CLOSED_2016,ProSe

U.S. DISTRICT COURT U.S. District Court, Western District of New York (Buffalo)

CIVIL DOCKET FOR CASE #: 1:15-cv-00888-RJA

RASHED v. UNITED STATES OF AMERICA et al

Assigned to: Hon. Richard J. Arcara Case in other court: District of Columbia, 1:15-cv-01640

Cause: 28:2241 Petition for Writ of Habeas Corpus (federa

Date Filed: 10/08/2015

Date Terminated: 11/23/2016 Jury Demand: None

Nature of Suit: 530 Habeas Corpus(General)

Jurisdiction: U.S. Government Defendant

PlaintiffMOHAMMED RASHED also known as

MOHAMMED RASHID

represented by Robert Lewis Tucker LAW OFFICES OF ROBERT L. TUCKER 7114 Washington Avenue St. Louis, MO 63130 (703) 527-1622 Email: [email protected]

LEAD ATTORNEY ATTORNEY TO BE NOTICED

A.J. Kramer FEDERAL PUBLIC DEFENDER FORTHE DISTRICT OF COLUMBIA 625 Indiana Avenue, NW Suite 550 Washington, DC 20004 (202) 208-7500 Fax: (202) 501-3829 Email: [email protected]

TERMINATED: 10/22/2015

V.

DefendantUnited States of America represented by Christopher Westley Dempsey

U. S. Department of Justice - Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 202-532-4110 Fax: 202-305-7000 Email: [email protected]


Gail Y. Mitchell U.S. Attorney's Office Federal Centre 138 Delaware Avenue



Buffalo, NY 14202 716-843-5833 Fax: 716-551-3196 Email: [email protected]

ATTORNEY TO BE NOTICED

DefendantJohn Sandweg

Acting Director, U.S. Immigration andCustoms Enforcement

represented by Christopher Westley Dempsey (See above for address)


Gail Y. Mitchell (See above for address)


DefendantWalter M. Ingram

Chief, Headquarters Post Order CustodyUnit, U.S. Immigration and CustomsEnforcement





DefendantTodd L. Tryon

Assistant Field Office Director, BuffaloFederal Detention Facility





Date Filed # Docket Text

10/08/2015 5 **SEALED**Case transferred in from District of District of Columbia; Case Number1:15-cv-01640. (Entered: 10/08/2015)

10/08/2015 Case Assigned to Hon. Richard J. Arcara. (JMM) (Entered: 10/08/2015)

10/08/2015 6 **SEALED**Remark - documents received from District of Columbia (their case number87cr308)- Main document contains: 182 response, 187 reply, 188 supplement to petition,189 supplement to petition, 190 supplement to petition, 192 supplement to petition, 191Decision to continue detention, 193 notice of intent, 194 transcript, 196 second supplementto opposition, 197 response to order, 199 Rashed's response, 200 motion to transfer, 201proposed order, 202 response to motion. (Attachments contain # 1 198 notice of address, #2 195 transcript, # 3 190 notice of attorney, # 4 184 order on motion, # 5 183 motion toextend, # 6 181 order granting motion, # 7 180 motion to seal, # 8 179 notice of attorney, #9 178 notice of attorney, # 10 177 order) (JMM) (Entered: 10/08/2015)

10/08/2015 Remark: This is a test docket entry - please disregard. (JMM) (Entered: 10/08/2015)

https://ecf.nywd.uscourts.gov/doc1/12903382047














10/26/2015 8 ORDER Respondents to file answer and memorandum no later than December 4, 2015;Petitioner shall have 20 days upon receipt of the answer to file a written response; within20 days of the date this order is filed Respondents may file a motion for a more definitestatement or a motion to dismiss; the Clerk of Court shall serve a copy of the petition andthis order by certified mail upon Todd L. Tryon, Assistant Field Office Director,Immigration and Customs Enforcement; Office of General Counsel, Dept. of HomelandSecurity; Attorney General of the United States; John Sandweg, Acting Director,Immigration and Customs Enforcement, U.S. Immigrations and Customs Enforcement;Walter M. Ingram, Chief of Headquarters Post Order Detention Unit and United StatesAttorney for the Western District. Signed by Hon. Richard J. Arcara on 10/26/15. (SG)(Entered: 11/05/2015)

10/30/2015 7 NOTICE of Appearance by Christopher Westley Dempsey on behalf of Walter M. Ingram,John Sandweg, Todd L. Tryon, United States of America (SG) (Entered: 11/03/2015)

11/10/2015 9 NOTICE of Appearance by Gail Y. Mitchell on behalf of Walter M. Ingram, JohnSandweg, Todd L. Tryon, United States of America (SG) (Entered: 11/12/2015)

11/30/2015 10 JOINT MOTION to Amend Briefing Schedule by Walter M. Ingram, MOHAMMEDRASHED, John Sandweg, Todd L. Tryon, United States of America.(SG) (Entered:12/01/2015)

12/08/2015 11 NOTICE of Appearance by Robert Lewis Tucker on behalf of MOHAMMED RASHED(SG) (Entered: 12/10/2015)

12/14/2015 12 TEXT ORDER. The parties filed 10 Joint Motion to Amend Briefing Schedule. Themotion is granted. As requested by the parties, the briefing schedule is amended asfollows: amended habeas petition due by December 15, 2015; response to habeas petitiondue by January 15, 2016; and reply in support of habeas petition due by January 29, 2016.SO ORDERED. Issued by Hon. Richard J. Arcara on December 14, 2015. (DJD) (Entered:12/14/2015)

12/15/2015 13 **SEALED**AMENDED PETITION for Writ of Habeas Corpus, filed by MOHAMMEDRASHED. (Attachments: # 1 Exhibits)(SG) (Entered: 12/21/2015)

01/19/2016 14 **SEALED** RESPONSE to 13 Petition for Writ of Habeas Corpus by Walter M.Ingram, John Sandweg, Todd L. Tryon, United States of America. (Attachments: # 1Exhibits)(SG) (Entered: 01/20/2016)

01/29/2016 15 **SEALED**REPLY/RESPONSE to 14 Response to Habeas Petition (Attachments: # 1Exhibits)(SG) (Entered: 02/01/2016)

01/29/2016 16 MOTION to Unseal Case by MOHAMMED RASHED.(SG) (Entered: 02/01/2016)

01/29/2016 17 MOTION for Prompt Hearing re setting conditions of release by MOHAMMEDRASHED.(SG) (Entered: 02/01/2016)

02/01/2016 18 ERRATA SHEET by Petitioner re 15 Reply/Response to 14 Response to Habeas Petition.(SG) (Entered: 02/03/2016)

03/02/2016 19 MOTION for Extension of Time to File Response/Reply as to 16 MOTION to UnsealCase by Walter M. Ingram, John Sandweg, Todd L. Tryon, United States of America.(SG)(Entered: 03/03/2016)

03/04/2016 20 **SEALED**RESPONSE to Motion re 16 MOTION to Unseal Case filed by Walter M.Ingram, John Sandweg, Todd L. Tryon, United States of America. (SG) (Entered:03/07/2016)

03/10/2016 21 **SEALED**REPLY to Response to Motion re 16 MOTION to Unseal Case filed by




























MOHAMMED RASHED. (SG) (Entered: 03/14/2016)

03/21/2016 22 Remark: This is a test event. No action is required by parties and attorneys. (JMM)(Entered: 03/21/2016)

03/22/2016 23 Sealed Document. (SG) (Entered: 03/23/2016)

04/21/2016 24 **SEALED, MAIN DOCUMENT ONLY**REPLY/RESPONSE to re 23 SealedDocument filed by Walter M. Ingram, John Sandweg, Todd L. Tryon, United States ofAmerica. (Attachments: # 1 Redaction Log, # 2 No. 6, # 3 No.13, # 4 No.14, # 5 No. 15, #6 No.21, # 7 No.23)(SG) (Entered: 04/22/2016)

04/21/2016 Minute Entry for proceedings held 4/21/2016 before Hon. Richard J. Arcara. OralArgument is held as to 13 Petitioner's Amended Petition for Writ of Habeas Corpus.Discussion is held regarding the desire of both parties to have petitioner removed from theUnited States. The Respondent requests an opportunity to advise the Court of a furtherdestination for Deft upon removal. The Court will not address that today. The Courtrequires further briefing as to the Amended Petition. The Court will issue an Order settingforth the issues to be briefed along with the deadline dates for the briefing. Appearances:Petitioner - Robert Tucker; Respondent - Christopher Dempsey and Gail Mitchell (CourtReporter Megan Pelka.) (DJD) (Entered: 04/26/2016)

04/25/2016 25 ORDER that the Government shall file a supplemental brief, not to exceed 20 pages inlength, on or before May 6, 2016 which addresses the issues referenced in this order;Petitioner shall file a responding brief, not to exceed 20 pages in length, on or before May20, 2106; Oral argument shall be heard on June 7, 2016 at 2:00 p.m.; on or before June 3,2016, the Government shall file a report (if necessary, under seal) detailing its diplomaticefforts to remove Petitioner from the U.S.; if at any time this matter becomes moot, theGovernment shall promptly notify the Court. Signed by Hon. Richard J. Arcara on4/22/16. (SG) (Entered: 04/27/2016)

04/25/2016 Set/Reset Hearings: Oral Argument set for 6/7/2016 02:00 PM before Hon. Richard J.Arcara. (DJD) (Entered: 05/09/2016)

05/05/2016 26 TRANSCRIPT of Oral Argument held 4/21/16 before the Honorable Richard J. Arcara,Court Reporter: Megan E. Pelka, [email protected] (SG) Modified on6/7/2016 to unseal (SG). (Entered: 05/05/2016)

05/05/2016 27 TEXT ORDER: Upon an informal request by the Government, and with the Respondent'sconsent, the Court's supplemental briefing schedule 25 is amended as follows: TheGovernment shall file its supplemental brief on or before May 10, 2016, and theRespondent shall file his supplemental brief on or before May 24, 2016. All other dates setforth in the Court's supplemental briefing schedule remain in effect. SO ORDERED.Issued by the Hon. Richard J. Arcara on May 5, 2016 (CMK). (Entered: 05/05/2016)

05/09/2016 28 REPLY/RESPONSE to re 23 Sealed Document filed by MOHAMMED RASHED. (SG)(Entered: 05/10/2016)

05/11/2016 29 SUPPLEMENTAL BRIEF re 25 Order,, by Walter M. Ingram, John Sandweg, Todd L.Tryon, United States of America. (SG) (Entered: 05/11/2016)

05/26/2016 30 REPLY/RESPONSE to re 29 Memorandum/Brief filed by MOHAMMED RASHED. (SG)(Entered: 05/27/2016)

06/03/2016 31 MOTION to partially close proceedings set for June 7, 2016 by Walter M. Ingram, JohnSandweg, Todd L. Tryon, United States of America.(SG) (Entered: 06/06/2016)

06/06/2016 32 ORDER clarifying which documents should be unsealed and which documents shouldremain sealed; all future filings in this case, other than the Government's Status Report

























dated June 3, 2016, shall be made in the public docket unless either party makes a motionto file the document under seal. Signed by Hon. Richard J. Arcara on 6/6/16. (SG)(Entered: 06/07/2016)


06/07/2016 34 NOTICE OF FILING DOCUMENTS by MOHAMMED RASHED (SG) (Entered:06/07/2016)

06/07/2016 35 Minute Entry for proceedings held 6/7/2016 before Hon. Richard J. Arcara. Continuationof Oral Argument is held as to 13 Petitioner's Amended Petition for Writ of HabeasCorpus. Decision is reserved. Appearances: Petitioner - Robert Tucker; Respondent -Christopher Dempsey and Gail Mitchell (Court Reporter Megan Pelka.) (JDK) (Entered:06/09/2016)

06/10/2016 36 TRANSCRIPT REQUEST by Walter M. Ingram, John Sandweg, Todd L. Tryon, UnitedStates of America for proceedings held on 6/7/2016 before Judge Richard J. Acara..(Dempsey, Christopher) (Entered: 06/10/2016)

06/16/2016 37 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Oral Argument Proceedings heldon 6/7/2016, before Judge Richard J. Arcara. Court Reporter/Transcriber Megan E. Pelka,Telephone number 716-364-6449. Transcript may be viewed at the court public terminal orpurchased through the Court Reporter/Transcriber before the deadline for Release ofTranscript Restriction. After that date it may be obtained through PACER.. RedactionRequest due 7/7/2016. Redacted Transcript Deadline set for 7/18/2016. Release ofTranscript Restriction set for 9/14/2016. (KM) (KM). (Main Document 37 replaced on6/16/2016 with corrected transcript) (SG). Modified on 6/16/2016 (SG). (Entered:06/16/2016)

06/16/2016 E-Filing Notification: (Main Document 37 replaced on 6/16/2016 with correctedtranscript) 37 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Oral ArgumentProceedings held on 6/7/2016, before Judge Richard J. Arcara. Court Reporter/TranscriberMegan E. Pelka, Telephone number 716-364-6449. Transcript may be viewed at the courtpublic terminal or purchased through the Court Reporter/Transcriber before the deadlinefor Release of Transcript Restriction. After that date it may be obtained through PACER..Redaction Request due 7/7/2016. Redacted Transcript Deadline set for 7/18/2016. Releaseof Transcript Restriction set for 9/14/2016. (KM) (KM). (SG) (Entered: 06/16/2016)

09/23/2016 38 Joint MOTION for Protective Order by Walter M. Ingram, John Sandweg, Todd L. Tryon,United States of America. (Attachments: # 1 Text of Proposed Order)(Dempsey,Christopher) (Entered: 09/23/2016)

09/29/2016 39 PROTECTIVE ORDER. Signed by Hon. Richard J. Arcara on 9/27/16. (SG) (Entered:09/30/2016)

10/24/2016 40 MOTION Ruling on Petition or Release Pending Ruling by MOHAMMED RASHED.(Tucker, Robert) (Entered: 10/24/2016)

10/25/2016 41 TEXT ORDER: The Government shall file a report regarding the status of Petitioner'sremoval on or before October 31, 2016. The report may be filed under seal, if necessary.SO ORDERED. Issued by Hon. Richard J. Arcara on 10/25/16. (LAS) (Entered:10/25/2016)

11/01/2016 42 MOTION for Extension of Time to File Status Report by Walter M. Ingram, JohnSandweg, Todd L. Tryon, United States of America.(Dempsey, Christopher) (Entered:11/01/2016)

11/01/2016 43 TEXT ORDER: The Government's motion 42 for an extension of time to file its responseto the Court's October 25, 2016 Text Order is granted. The Government shall file a report














regarding the status of Petitioner's removal on or before November 9, 2016. The reportmay be filed under seal, if necessary. SO ORDERED. Issued by the Hon. Richard J.Arcara on November 1, 2016 (CMK). (Entered: 11/01/2016)

11/21/2016 44 TEXT ORDER: The Government shall file a report regarding the status of Petitioner'sremoval on or before December 1, 2016. The report may be filed under seal, if necessary.No further extensions of time will be granted. A copy of this docket entry has been mailedto Christopher Westley Dempsey, U. S. Department of Justice - Civil Division, P.O. Box868, Ben Franklin Station, Washington, DC 20044 and Robert Lewis Tucker, 7114Washington Avenue, St. Louis, MO 63130. SO ORDERED. Issued by Hon. Richard J.Arcara on 11/21/16. (LAS) (Entered: 11/21/2016)

11/21/2016 45 **DISREGARD, REFILED AT NO. 47 TO ATTACH DOCUMENT*Sealed Document.(SG) Modified on 11/22/2016 (SG). (Entered: 11/21/2016)

11/21/2016 46 STIPULATION of Dismissal by Walter M. Ingram, John Sandweg, Todd L. Tryon, UnitedStates of America. (Dempsey, Christopher) (Entered: 11/21/2016)


11/22/2016 48 -CLERK TO FOLLOW UP-TEXT ORDER: Upon receipt of the parties' joint stipulationof dismissal 46 , this case is dismissed with prejudice. Text order 44, entered on November21, 2016, is hereby vacated. The Clerk of Court shall take all steps necessary to close thecase. SO ORDERED. Issued by Hon. Richard J. Arcara on 11/22/16. (LAS) (Entered:11/22/2016)


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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

MOHAMMED RASHED ) Case No. 1:15-cv-888 a.k.a. RASHID MOHAMMED, ) ) Petitioner, ) ) v. ) ) UNITED STATES OF AMERICA, ) SUPPLEMENTAL BRIEF SARAH R. SALDAÑA, Director, ) U.S. Immigration and Customs ) Enforcement, FLOYD S. FARMER, ) Chief, Headquarters, Removal and ) International Operations Unit; TODD ) TYRON, Assistant Field Office Director, ) ) FILED UNDER SEAL Respondents. )

INTRODUCTION

COME NOW, Respondents, by and through undersigned counsel, who hereby respond to

this Court’s April 22, 2016 order (ECF No. 25), in which the Court ordered Respondents to

address (1) whether Petitioner’s continued post-removal civil immigration detention on national

security and terrorism grounds under 8 C.F.R. § 241.14(d) is consistent with applicable case law

on procedural due process and/or immigration detention, including Hamdi v. Rumsfeld, 542 U.S.

507 (2004), and Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953); and (2) if the

Court ordered Petitioner’s release into the United States, the process for release on conditions

under 8 U.S.C. § 1231(a)(3), and whether this Court would retain jurisdiction over Petitioner and

his conditions of supervision.

In Hamdi, a plurality of the Supreme Court held that a United States citizen detained by

the Government as an “enemy combatant” was entitled to a meaningful opportunity to contest

the facts of his capture and enemy combatant designation before a neutral decision-maker.

Hamdi, 542 U.S. at 509. Hamdi involved the potentially indefinite detention of a United States

Case 1:15-cv-00888-RJA Document 29 Filed 05/11/16 Page 1 of 21

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citizen, without formal charges, proceedings, or access to legal counsel, who persistently denied

any association with terrorism. Id. at 510. The only evidence supporting Hamdi’s detention in

the habeas record was a two-page declaration by a mid-level government executive. Id. His

only opportunity to respond was during his interrogation at the hands of military officials. Id.

Unlike Hamdi, this case involves the detention under immigration authorities of

Petitioner, an alien arriving at our borders but never admitted to the United States, who was

convicted in federal district court of terrorism-related crimes. Petitioner in this case was

indicted, prosecuted, and ultimately pled guilty in federal district court to placing a bomb on a

commercial airliner – which exploded while the aircraft was in flight, killing a child, and injuring

fifteen others – and further admitted to his involvement in four other actual or attempted

international bombings. See Response in Opposition to Amended Petition (“Opp”) at Exhibits 1-

3 (ECF No. 14). Consistent with due process precedents – including Hamdi – Petitioner has

received notice of the Government’s extensively documented factual basis for his continued

detention under preexisting regulations; has been afforded a meaningful and fair opportunity to

rebut that record before a Cabinet-level decision-maker, with the assistance of his counsel; and

will receive periodic review of his detention at least every six months. Cf. Hamdi, 542 U.S. at

533. Moreover, as an arriving alien never having effected entry into the United States, Petitioner

received all the process that was due. See Mezei, 345 U.S. at 212. Petitioner’s detention on

national security grounds thus satisfies due process.

Further, as Section II addresses, no conditions of release can reasonably be expected to

avoid the threat to national security were the Department of Homeland Security (“DHS”) ordered

to release Petitioner from immigration detention into the United States. In addition, upon

Petitioner’s release, this Court would lack jurisdiction over Petitioner and authority to enforce

any conditions of supervision because this habeas action would become moot. Accordingly, this


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Court should not order Petitioner’s release. Rather, it should allow the Government additional

time to effect Petitioner’s removal to the Palestinian Territories or a third country.

RELEVANT BACKGROUND AND PROCEDURAL HISTORY

On July 14, 1987, Petitioner and two other aliens were charged in a nine-count indictment

in the District of Columbia with offenses arising out of an extensive bombing campaign

conducted by members of the 15 May Organization, a terrorist group that targeted American and

Israeli interests around the world. See Opp. at Exhibit 1. At the time of the indictment, neither

Petitioner nor his co-defendants were in the United States. Id. On June 3, 1998, Petitioner was

paroled into the United States for prosecution on the pending indictment, following his arrest

overseas. See Amend. Pet. at ¶ 10. On December 17, 2002, Petitioner pled guilty to three of the

nine pending charges and agreed to removal from the United States after the completion of his

prison sentence. See Opp. at Exhibit 2. Petitioner conceded removability before the conclusion

of his prison sentence, and his order of removal became final on January 24, 2013. See Amend.

Pet. at ¶ 15; Opp. at Exhibit 15. On March 20, 2013, Petitioner entered the custody of U.S.

Immigration and Customs Enforcement (“ICE”). Id. Efforts to effectuate Petitioner’s removal

to one of a number of countries have been ongoing since before he completed serving his prison

sentence. See Opp. at Exhibits 10, 21, 26. On May 11, 2015, the Government gave Petitioner

notice that it was invoking the provisions at 8 C.F.R. § 241.14(d) as authority for his continued

immigration detention. See Opp. at Exhibit 22. On January 15, 2016, the Secretary of

Homeland Security personally certified Petitioner’s continued detention for a period of six

months pursuant to section 241.14(d)(6).1 See Opp. at Exhibit 25.

1 The full procedural history of the Government’s steps to effectuate Petitioner’s detention on national security

grounds under 8 C.F.R. § 241.14(d), and the notice and opportunity to respond that Petitioner received, is detailed at

Opp. at pp. 11-14 (ECF No. 14).


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DISCUSSION

I. PETITIONER’S DETENTION UNDER 8 C.F.R. § 241.14(d) SATISFIES DUE PROCESS – ESPECIALLY IN THIS NATIONAL SECURITY CONTEXT WARRANTING DEFERENCE TO THE EXECUTIVE – BECAUSE THE ALIEN PETITIONER RECEIVED NOTICE AND A MEANINGFUL OPPORTUNITY TO RESPOND.

Constitutionally adequate process is a “flexible concept,” Walters v. Nat’l Ass’n of

Radiation Survivors, 473 U.S. 305, 320 (1985), which “cannot be divorced from the nature of the

ultimate decision that is being made.” Parham v. J.R., 442 U.S. 584, 608 (1979). Petitioner’s

detention satisfies due process for three overlapping and related reasons. First, Petitioner is an

arriving alien who has never been admitted to the United States and thus stands on the same legal

footing as an alien outside the United States. As the Supreme Court has long-recognized, aliens

outside the territorial boundaries of the United States have limited procedural due process rights.

See Mezei, 345 U.S. at 212. Second, consistent with Mathews v. Eldridge, 424 U.S. 319 (1976),

as discussed by Hamdi in the national security context, Petitioner’s continued detention does not

offend due process because he received notice of the extensive record supporting his detention

and had a meaningful opportunity to respond, and his detention will receive mandatory periodic

review by the Secretary or Deputy Secretary of Homeland Security at least every six months,

under the regulations at 8 C.F.R. § 241.14(d). Hamdi, 542 U.S. at 533. Third, courts routinely

defer to well-supported Executive branch decisions to detain on national security grounds. Such

deference is warranted here because Petitioner is a convicted terrorist whose release poses a

threat to national security and a significant risk of terrorism that no conditions will mitigate.

A. Petitioner Received Sufficient Due Process Given His Status As An Arriving Alien Never Having Effected Entry Into the United States.

Under longstanding immigration law precedents, the detention of aliens such as Petitioner

on national security grounds is well supported. Petitioner was paroled into the United States for

prosecution. He is an arriving alien never having effected entry into the United States. See


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Amend. Pet. at ¶ 10; 8 U.S.C. §§ 1182(d)(5)(A), 1101(a)(13)(B); 8 C.F.R. §§ 1.2, 1001.1(q)

(arriving alien remains arriving alien even if paroled). To be clear, Petitioner’s parole does not

constitute a lawful admission into the United States; he remains an arriving alien. See Ibragimov

v. Gonzales, 476 F.3d 125, 131-132 (2d Cir. 2007) (recognizing that parole does not constitute

an admission, and an alien paroled remains an arriving alien).2

The Supreme Court, in assessing procedural due process protections, has repeatedly

distinguished aliens arriving at our borders, such as Petitioner, from persons who have “passed

through our gates” and have established substantial ties within the United States.3 Shaughnessy

v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953). In Mezei, a lawfully admitted alien

who had lived in the United States for twenty-five years left the country to visit his dying mother

in Romania. Mezei, 345 U.S. at 208. Upon his return to the United States nineteen months later,

Mezei was excluded for security reasons and sent to Ellis Island. Id. Since no country would

allow him entry, Mezei’s confinement on Ellis Island became potentially permanent, and he

challenged his detention. Id. at 209.

The Supreme Court in Mezei held that aliens arriving at our borders may be excluded

from entering the United States and detained for reasons including those based on a

2 Additionally, 8 C.F.R. § 212.5(e)(2)(i) provides for termination of parole upon service of a charging document, and

for continued custody of such alien if the “removal order cannot be executed within a reasonable time” and DHS

determines that “the public interest requires that the alien be continued in custody.”

3 The distinction between an alien who has effected entry into the United States and one who has never entered runs

throughout immigration law. See Zadvydas v. Davis, 533 U.S. 678, 692 (2001) citing Kaplan v. Tod, 267 U.S. 228,

230 (1925) (despite nine years’ presence in the United States, an “excluded” alien “was still in theory of law at the

boundary line and had gained no foothold in the United States”); Leng May Ma v. Barber, 357 U.S. 185, 188-190

(1958) (alien “paroled” into the United States pending admissibility had not effected an “entry”). For the Supreme

Court has “repeatedly emphasized that over no conceivable subject is the legislative power of Congress more

complete than it is over the admission of aliens.” Fiallo v. Bell, 430 U.S. 787, 792 (1977). This power is

“necessarily very broad, touching as it does basic aspects of our national sovereignty, more particularly our foreign

relations and the national security.” Galvan v. Press, 347 U.S. 522, 530 (1954). And when the Executive

determines an alien is inadmissible and must be removed, this power is “inherent in the executive power to control

the foreign affairs of the nation.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). “[T]he

power to expel or exclude aliens [i]s a fundamental sovereign attribute exercised by the Government’s political

departments largely immune from judicial control.” Fiallo, 430 U.S. at 792.


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determination of danger to the national security. Id. at 216. Citing the “long recognized . . .

power to expel or exclude aliens as a fundamental sovereign attribute,” the Supreme Court

reasoned that “an alien on the threshold of initial entry stands on a different footing: [w]hatever

the procedure authorized by Congress is, it is due process as far as an alien denied entry is

concerned.” Id. at 210-12 (internal quotations and citations omitted); see also United States v.

Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (Fifth Amendment’s protections do not extend to

aliens outside the territorial boundaries); Johnson v. Eisentrager, 339 U.S. 763, 784 (1950)

(same).

Mezei is still good law. See, e.g., Kiyemba v. Obama, 55 F.3d 1022, 1026-27 (D.C. Cir.

2009) (observing that neither Zadvydas v. Davis, 533 U.S. 678 (2001) nor Clark v. Martinez, 543

U.S. 371 (2005) undermine Mezei); Bruce v. Slattery, 791 F. Supp. 963, 967 (S.D.N.Y. 1991)

(“the Supreme Court has never directly criticized Mezei nor backed away from its holding.”); but

see Rosales-Garcia v. Holland, 322 F.3d 386, 414 (6th Cir. 2003).4 Noting that “in the United

States, who can come in and on what terms is the exclusive province of the political branches,”

Kiyemba, 555 F.3d at 1029, the District of Columbia Circuit reversed a grant of habeas corpus

relief to certain detainees held at Guantanamo Bay no longer treated as enemy combatants, also

reasoning:

It would therefore be wrong to assert that, by ordering aliens paroled into the

country in Zadvydas and Clark, the Court somehow undermined the plenary

authority of the political branches over the entry and admission of aliens. The

point is that Congress has set up the framework under which aliens may enter the

United States. The Judiciary only possesses the power Congress gives it – to

review Executive action taken within that framework. Since petitioners have not

applied for admission, they are not entitled to invoke that judicial power.

4 In Rosales-Garcia, the Sixth Circuit, while discussing federal cases after Mezei that raised constitutional concerns

regarding indefinite detention, recognized that national security concerns like those present in Mezei posed “special

circumstances” warranting detention. Rosales-Garcia, 322 F.3d at 413-15 (“Particularly in a post-September 11

world, we recognize that in special circumstances prolonged post-removal-period detention may be warranted.”),

citing Zadvydas, 533 U.S. at 696.


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Id. at 1028 n.12. In this vein, the Zadvydas Court termed Mezei’s status as an alien seeking entry

a “critical distinction,” and distinguished Mezei from its holdings raising constitutional concerns

regarding indefinite detention of aliens who had already entered the United States. Zadvydas,

533 U.S. at 693-95 (noting that Mezei was “treated, for constitutional purposes, as if stopped at

the border” and that “[i]t is well established that certain constitutional protections available to

persons inside the United States are unavailable to persons outside . . . .” the United States)

(internal quotations omitted); see also Bolante v. Keisler, 506 F.3d 618, 621 (7th Cir. 2007)

(Posner, J.) (“just like Mezei [Petitioner] was not lawfully admitted to the United States . . . and

so had no right to be released”) (internal citation omitted).5

Given that Petitioner is an alien subject to a final order of removal who never effected an

entry into the United States, the procedural protections provided by 8 C.F.R. § 241.14(d) are

more than sufficient. To the extent process is due to an alien brought to the United States against

his will – but never admitted, such as Petitioner – the adequacy of these protections must be

assessed not only with regard to the threat he poses to the national security of the United States,

but also in light of his lack of immigration status.6 This is a legitimate distinction, for the

Supreme Court has long held that, “[i]n the exercise of its broad power over naturalization and

5 In Clark v. Martinez, 543 U.S. 371 (2005), the Supreme Court expanded to arriving aliens its holding in Zadvydas,

i.e., that the detention of aliens with final orders of removal, where no significant possibility exists of removal in the

reasonably foreseeable future, is subject to a presumptive six-month limit. Id. at 386-87. However, in Clark the

Supreme Court reached this conclusion based on the statutory language of 8 U.S.C. § 1231(a)(6), rather than a

constitutional analysis likening the due process rights of arriving aliens to those who have been admitted to the

United States. Id. at 378. Clark simply acknowledged that, in the specific context of post-removal order

immigration detention, Congress codified a common statutory framework for both arriving aliens and admitted

aliens. See id. at 380. Clark does not erode the principle that arriving aliens and admitted aliens stand in

constitutionally distinct postures, which Mezei recognized and Zadvydas reaffirmed.

6 As in Mezei, Congress has determined what process is due to aliens such as Petitioner. Mezei, 345 U.S. at 212

(“Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”).

Congress enacted 8 U.S.C. § 1226a on October 26, 2001, P.L. 107-56, § 412(a), shortly before 8 C.F.R. § 241.14(d)

was promulgated on November 14, 2001, 66 Fed Reg. 56967. Section 1226a provides for the continued detention of

aliens if their release will threaten the national security of the United States, upon the certification of the Secretary

of Homeland Security, to be reviewed every six months. See 8 U.S.C. § 1226a(a)(3)-(6). Indeed, the standards

outlined at section 1226a are materially similar to the regulation at 8 C.F.R. § 241.14(d).


8

immigration . . . [the Government] regularly makes rules that would be unacceptable if applied to

citizens.” Mathews v. Diaz, 426 U.S. 67, 80 (1976); see also Demore v. Kim, 538 U.S. 510, 520

(2003); Zadvydas, 533 U.S. at 693; Landon v. Plasencia, 459 U.S. 21, 32-33 (1982) (“an alien

seeking initial admission to the United States requests a privilege and has no constitutional rights

regarding his application, for the power to admit or exclude aliens is a sovereign

prerogative . . . . ”); Bruce v. Slattery, 781 F. Supp. at 966. As an arriving alien who has never

been admitted to the United States, Petitioner is in the same legal footing as an alien stopped at

the border. As such, Petitioner does not have the same due process rights as a United States

citizen, such as Hamdi, and the Fifth Amendment does not demand greater process than that

afforded to Petitioner under 8 C.F.R. § 241.14(d).

B. Petitioner’s Detention Satisfies Procedural Due Process Because He Received Notice of the Extensively Documented Reasons for His Detention And Had An Opportunity To Respond.

Even though Petitioner’s immigration status distinguishes him from Hamdi, a United

States citizen, Petitioner received sufficient due process under Mathews and Hamdi. He received

notice of the factual basis for his continued detention, and was afforded a meaningful and fair

opportunity to rebut the Government’s factual assertions before a sufficiently neutral decision-

maker. Hamdi, 542 U.S. at 533. The Government provided Petitioner with written notice of its

intention to continue his detention under the regulation; advised him of the factual basis for his

continued detention; gave Petitioner a reasonable opportunity to examine the evidence against

him, and to present evidence and argument on his own behalf; and conducted an in-person

interview of Petitioner in the presence of his attorney. The Secretary of Homeland Security, a

Cabinet-level official, considered the record, including Petitioner’s responses and the

recommendation of the Director of the Federal Bureau of Investigation (“FBI”), prior to

certifying Petitioner’s continued detention for six months. See 8 C.F.R. § 241.14(d)(6). And the


9

Secretary or Deputy Secretary must review the detention decision at least every six months. See

8 C.F.R. § 241.14(d)(7). In light of the threat to national security posed by Petitioner’s release,

along with his status as an arriving alien never having entered the United States, the process

provided in the regulation more than sufficient.

1. Petitioner had notice and a meaningful opportunity to respond.

The extensive notice and opportunity to respond provided to Petitioner satisfies due

process under Mathews, especially in light of the Government’s substantial interests in

preventing danger on national security grounds. The plurality in Hamdi held that an individual

such as Hamdi (a United States citizen) must at least receive “notice of the factual basis for his

classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral

decision maker.” Hamdi, 542 U.S. at 533; see also id. at 539 (“[A] habeas court in a case such

as this may accept affidavit evidence like that contained in the [Government’s] declaration, so

long as it also permits the alleged combatant to present his own factual case to rebut the

Government’s return.”); 28 U.S.C. § 2243 (“Court shall summarily hear and determine the facts,

and dispose of the matter as law and justice require.”). Notably, the plurality also held that

“aside from these core elements . . . proceedings may be tailored to alleviate the uncommon

potential to burden the Executive . . . .” in the context of national security, intelligence gathering,

and ongoing conflict in the “war on terror.” Hamdi, 542 U.S. at 533; see also Boumediene v.

Bush, 553 U.S. 723, 779-80 (2008) (noting that habeas has long been an “adaptable remedy . . .

[i]ts application and scope changed depending upon the circumstances”). For instance, hearsay

evidence would be permissible, as would a presumption in favor of the Government’s evidence.

Hamdi, 542 U.S. at 533-34.

Petitioner, an arriving alien never having effected entry into the United States, received

far more process than the United States citizen-detainee in Hamdi, who received “no process”


10

except an interrogation by his “captor . . . [which] hardly constitutes a constitutionally adequate

fact-finding before a neutral decision-maker.” Id. at 537. In contrast, Petitioner was notified of

the Government’s intention to continue his detention with the factual basis for that

determination, and provided an opportunity to be heard “at a meaningful time and in a

meaningful manner.” Id. at 535. Consistent with 8 C.F.R. § 241.14(d)(2)-(6), the Government

provided Petitioner with written notice of its intention to continue his detention under the

regulation and advised him of the factual basis for his continued detention. See Opp. at Exhibits

22-24; Amend. Pet. at Exhibits 8, 13-14.

Petitioner was then afforded a fair opportunity to rebut the Government’s detailed factual

assertions. See Amend. Pet. at Exhibits 13, 16. He submitted two written responses to the

Notice of Intent and Factual Basis to Continue Detention, which raised legal objections to his

continued detention, contested the factual basis underlying the notice and the written

recommendation of the Director of the FBI, and included letters in support of his release. See

Amend. Pet. at Exhibits 13, 16. He also provided sworn testimony at an interview before an

immigration officer in the presence of his attorney. Id. at Exhibit 14.

Petitioner’s written submissions and testimony were considered by both the Director of

ICE and the Secretary of Homeland Security prior to certification of Petitioner’s detention. See

Opp. at Exhibits 24-25; Reply at Exhibit 1, pp. 5-11. Upon considering the entire record –

including Petitioner’s submissions as well as recommendations by the Directors of ICE and the

FBI – the Secretary of Homeland Security continued Petitioner’s detention for a period of six

months. See Opp. at Exhibit 25. Additionally, pursuant to 8 C.F.R. § 241.14(d)(7), Petitioner

will also have the opportunity to review any additional materials and supplement the record, in

connection with ongoing review and re-certification by the Secretary or Deputy Secretary of

Homeland Security on a semi-annual basis.


11

This procedure is more than adequate under Hamdi, wherein the plurality determined that

cross-affidavits would constitute sufficient due process, even for a United States citizen.7 Id. at

539. Providing the alien with a “reasonable opportunity” to examine evidence against him “[t]o

the greatest extent consistent with national security and classified information,” 8 C.F.R. §

241.14(d)(2)(ii), is a sensible limitation which balances the alien’s right to attempt to rebut the

Government’s factual allegations with the need to safeguard classified national security

information.8

Petitioner criticizes the Government for declining to produce records in response to his

lengthy discovery requests. See Amend. Pet. at ¶¶ 27, 29. But Hamdi does not hold that the

Government must produce all potentially relevant documents in its possession in something akin

to a criminal prosecution. 542 U.S. at 528 (rejecting notion that “trial-like” process is required,

and recognizing practical difficulty of discovery into “sensitive secrets of national defense”).

Under Hamdi, the Government need only provide “fair opportunity” to rebut the Government’s

factual assertions. Id. at 533 (“[S]ome of the ‘additional or substitute procedural safeguards’

suggested by the District Court are unwarranted in light of their limited ‘probative value’ and the

burdens they may impose on the military in such cases.”) citing Mathews, 424 U.S. at 335.

7 Additionally, although Boumediene v. Bush, 553 U.S. 723 (2008) did not rule regarding procedural due process,

see id. at 785, and rather considered the adequacy, as a substitute for habeas, of Combatant Status Review Tribunals

(“CSRT”) for Guantanamo detainees, see id. at 780-87, the processes governing Petitioner’s under detention 8

C.F.R. § 241.14 are stronger than those the Boumediene Court analyzed, with less risk of error. Id. at 785. For

example, Petitioner’s counsel has assisted Petitioner in reviewing the record and rebutting the evidence challenging

Petitioner’s detention, unlike Boumediene, in which a detainee was assigned a “Personal Representative” to assist

him during CSRT proceedings, who was not the detainee’s lawyer or even his “advocate.” Id. at 767. Additionally,

Petitioner is fully aware of and participated in his defense of his criminal court convictions for terrorism-related

crimes, and has reviewed a subsequent detention record with minimal redactions – unlike Boumediene, in which

detainees may not have been aware of “the most critical allegations” underlying their detention. Id. at 783-84. And

8 CFR § 241.14(d) mandates that the DHS Secretary or Deputy Secretary review Petitioner’s detention at least every

six months, at which Petitioner can also raise new evidence – unlike Boumediene, where the Executive’s

“determination whether to initiate new proceedings [was] wholly a discretionary one.” Id. at 789.

8 Indeed, even in a habeas proceeding, discovery is the exception rather than the rule. See Bracy v. Gramley, 520

U.S. 899, 904 (1997) (habeas petitioners are “not entitled to discovery as a matter of ordinary course”); Harris v.

Nelson, 394 U.S. 286, 295 (1969) (same).


12

Here, Petitioner was permitted to examine the record presented to the Secretary and was

afforded a meaningful opportunity to rebut the factual basis for his continued detention. The

Court now has the benefit of that record in assessing the process of Petitioner’s continued

detention pursuant to 8 C.F.R. § 241.14(d), and Petitioner continues to challenge the factual basis

for his continued detention before this tribunal. See Amend. Pet. at ¶¶ 32-36; Reply 30-37.

Under Mathews and Hamdi, the procedures at section 241.14(d)(2) provide sufficient process.

2. Petitioner’s detention was continued by a sufficiently neutral decision

maker.

Here, the Secretary of Homeland Security is a sufficiently neutral decision-maker to

satisfy due process, given the particular context of immigration and national security here. See

Hamdi, 542 U.S. at 533. The administrative process under 8 C.F.R. § 241.14(d) provides that

ICE make the decision to initiate proceedings and any steps prior to the Secretary’s

determination take place before ICE. See 8 C.F.R. § 241.14(d)(2); Pet. Reply at Exhibit 1, pp. 5-

11. Further, in contrast to Hamdi, a Cabinet-level Executive officer certified Petitioner’s

continued detention. Indeed, this is the first time the Government has employed this regulation

to detain on national security grounds. Given the high-level involvement required to invoke this

authority, and rarity of its invocation, it is clear the Government has not lightly invoked this

authority for Petitioner’s continued detention. This consideration of detention by high-level

government officials with particular expertise in national security matters makes it less likely

that Petitioner is subject to an erroneous deprivation of liberty.9 See Hamdi, 542 U.S. at 530.

9 Moreover, there is precedent for Executive branch officers reporting to Cabinet heads to be considered sufficiently

neutral in their examination of individual cases. For instance, while immigration judges belong to the Executive

Branch, their neutrality is well-recognized, even though the Attorney General has authority to certify and determine

a question of law in the immigration courts. See 8 C.F.R. § 1003.1(h)(1); see also, e.g., Matter of D-J-, 23 I. & N.

Dec. 572 (A.G. 2003) (certifying individual bond decision); see also, e.g., Butz v. Economou, 438 U.S. 478, 513-14

(1978) (administrative law judges are “functionally comparable” to Article III judges; they exercise “independent

judgment on the evidence before” them).


13

The procedures at 8 C.F.R. § 241.14(d), in combination with the availability of habeas

review under 28 U.S.C. § 2241, are consistent with the plurality’s holding in Hamdi that an

individual challenging his detention must have some recourse to determine whether the

Executive’s asserted justifications for his detention “have basis in fact and warrant in law.”10

See Hamdi, 542 U.S. at 526. Petitioner has recourse to challenge his continued detention, 8

C.F.R. § 241.14(d)(2), and that process is more than sufficient under Hamdi, especially given

Petitioner’s status as an arriving alien never having effected entry into the United States. See

Mezei, 345 U.S. at 212; Hamdi, 542 U.S. at 533. Petitioner’s continued detention is

constitutionally permissible.

C. Executive Detention Under 8 C.F.R. § 241.14(d) For National Security Purposes Warrants Substantial Deference, Because Of The Executive’s Particular National Security Expertise.

Petitioner’s detention under 8 C.F.R. § 241.14(d) – regulations crafted to govern

continued detention on account of terrorism or other national security concerns – is particularly

justified because courts routinely accord the Executive substantial deference in the national

security area. See, e.g., Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010) (“[T]he

Government’s interest in combating terrorism is an urgent objective of the highest order.”); Haig

v. Agee, 453 U.S. 280, 307 (1981) (“It is ‘obvious and unarguable’ that no governmental interest

is more compelling than the security of the Nation.”) quoting Aptheker v. Sec’y of State, 378 U.S.

10

The availability of habeas review of Petitioner’s continued detention in federal district court – over and above

DHS regulations – provides further procedural protection, and distinguishes this case from Hamdi and Boumediene,

and undercuts any concerns about Secretary’s certification of Petitioner’s detention. The parties agree that, absent

suspension, the habeas jurisdiction remains in this case – unlike Hamdi, where the availability of the writ itself was

in question. See Hamdi, 542 U.S. at 525 citing U.S. Const., Art. I, § 9, cl. 2; see also INS v. St. Cyr, 533 U.S. 289,

301-302 (2001) (“writ of habeas corpus was available to non-enemy aliens as well as to citizens”). “Congress

envisioned that habeas petitioners would have some opportunity to present and rebut facts and that courts . . . retain

some ability to vary the ways in which they do so as mandated by due process . . . given both the flexibility of the

habeas mechanism and the circumstances present in [each] case.” See Hamdi, 542 U.S. at 526; Rasul v. Bush, 542

U.S. 466, 473 (2004); see also Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1255 (10th Cir. 2008) (“aliens who

believe that their detention is unlawful may challenge ICE’s determination by seeking a writ of habeas corpus in

federal court”).


14

500, 509 (1964); Olivares v. TSA, --- F.3d ----, 2016 WL 1535072, at *5 (D.C. Cir. Apr. 15,

2016) (“[C]ourts do not second-guess expert agency judgments on potential risks to national

security.”); Al Haramain Islamic Found., Inc. v. U.S. Dep’t of the Treasury, 686 F.3d 965, 980

(9th Cir. 2011) (“[T]he government’s interest in national security cannot be understated.”).

Subsequent to Zadvydas, the Supreme Court has reaffirmed the heightened judicial

deference owed to detention decisions made on national security grounds. “The law must accord

the Executive substantial authority to apprehend and detain those who pose a real danger to our

security.” Boumediene, 553 U.S. at 797 (“In considering both the procedural and substantive

standards used to impose detention to prevent acts of terrorism, proper deference must be

accorded to the political branches.”) citing United States v. Curtiss–Wright Export Corp., 299

U.S. 304, 320 (1936); see also Hamdi, 542 U.S. at 531 (noting historical reluctance of the courts

“to intrude upon the authority of the Executive in military and national security affairs”) citing

Dep’t of the Navy v. Egan, 484 U.S. 518, 530 (1988) (“courts faced with these sensitive matters

will pay proper heed . . . to the matters of national security that might arise in an individual

case”); Opp. at p. 24, n.16 (collecting cases). As such, the Hamdi plurality called the

Government’s interest in “detaining those who actually pose an immediate threat to the national

security of the United States” “critical . . . weighty and sensitive,” and declined to hold under

Mathews that a system of trial-like process was required. Id. at 530-31. This deference is in part

due to the Executive’s particular expertise in national security matters. See Boumediene, 553

U.S. at 797 (“Unlike the President and some designated Members of Congress, neither the

Members of [the Supreme] Court nor most federal judges begin the day with briefings that may

describe new and serious threats to our Nation and its people.”).

Petitioner’s detention under 8 C.F.R. § 241.14(d) for national security reasons is squarely

the type of detention to which federal courts should and do accord deference. The regulations


15

apply to those aliens whose “release presents a significant threat to the national security or a

significant risk of terrorism.” 8 C.F.R. § 241.14(d)(1)(ii). Indeed, unlike Hamdi, who sought

habeas review because he had persistently denied any association with terrorism, Petitioner here

has already been indicted, prosecuted, and ultimately pled guilty in federal district court to

placing a bomb on a commercial airliner – which exploded while the aircraft was in flight,

killing a child and injuring fifteen others – and further admitted to his involvement in four other

actual or attempted international bombings. See Opp. at Exhibits 1-3.

The record in this habeas case now consists of hundreds of pages of documents, which

support the Government’s determination that Petitioner’s “release presents a significant threat to

the national security or a significant risk of terrorism and no conditions of release can reasonably

be expected to avoid the threat to the national security or risk of terrorism.” 8 C.F.R.

§ 241.14(d)(1). The Executive’s determination to detain Petitioner on national security grounds

is entitled to deference. See Hamdi, 542 U.S. at 529-35. However, the procedures governing

Petitioner’s detention are consistent with due process because Petitioner was provided notice and

a meaningful opportunity to respond – indeed, to a much greater extent than Hamdi. See Hamdi

542 U.S. at 533 (“a citizen-detainee seeking to challenge his classification as an enemy

combatant must receive notice of the factual basis for his classification, and a fair opportunity to

rebut the Government’s factual assertions before a neutral decisionmaker”).

II. NO CONDITIONS OF RELEASE WILL MITIGATE THE THREAT TO NATIONAL SECURITY.

A. Petitioner Presents A Threat To National Security And Significant Risk of

Terrorism That No Conditions Will Mitigate.

The Secretary of Homeland Security, the Director of ICE, and the FBI Director have all

determined that Petitioner presents a significant threat to the national security and a significant

risk of terrorism, and that no conditions of release can reasonably be expected to avoid that


16

threat. See Opp. at Exhibits 23-25 (ECF No. 14). Petitioner was a member of the “15 May”

organization, which aimed to promote the Palestinian cause by inflicting personal injury and

economic damage through the use of force and violence on American and Israeli interests around

the world. See Opp. at Exhibits 1, 3, 4, 23. Petitioner was involved in planning and carrying out

bombing missions on behalf of the “15 May” organization. See Opp. at Exhibit 3. In fact,

Petitioner participated in at least five actual or attempted bombings, including the bombing of

Pan Am Flight 830. Id. Moreover, Petitioner has been convicted of multiple crimes, including

acts of violence. See Opp. at Exhibits 4, 5. Petitioner has had no contact with his wife or

children since 1988. See Opp. at Exhibit 4. Petitioner has no ties to the community. See Opp. at

Exhibit 16. He also has a history of flight. Id. The Secretary of Homeland Security, Director of

ICE, and the FBI Director, and have all determined that Petitioner continues to pose a threat. See

Opp. at Exhibits 23-25.

Moreover, there is no evidence that Petitioner has renounced his past terrorist activities.

Petitioner still thinks that, “the United States has no honor . . . [and] the United States is a

dishonorable, and disrespectful country.” See Opp. at Exhibit 17. He blames the Boston

Marathon attack on the United States and its policies, rationalizes his past crimes as acts for

Palestinian nationalism and not terrorism, and still thinks attacking military targets, to include

Israeli military, are justified “for nationalism.” See Opp. at Exhibit 23, pp. 3-4. Petitioner also

expresses no remorse and refuses to pay restitution to his victims. See Opp. at Exhibit 23, p. 3.

As discussed in the FBI Director’s recommendation, given Petitioner’s expected ability to

travel within the United States if released, the wide availability of communications facilities to

which Petitioner would have access, and the inherent limitations of physical surveillance, no

conditions of release can reasonably be expected to avoid the threat to the national security or the

risk of terrorism. See Opp. at Exhibit 23, p. 4. The ICE Director concurred with this assessment


17

and also recommended that no conditions of release were sufficient. See Reply at Exhibit 1, pp.

5-11. This Court owes deference to the collective determination by the Secretary of Homeland

Security, the Director of ICE, and the FBI Director that Petitioner presents a significant threat to

the national security and a significant risk of terrorism, and that no conditions of release can

reasonably be expected to avoid that threat. See Opp. at Exhibits 23-25; Hamdi, 542 U.S. at 531.

B. DHS’s Authority to Impose Conditions of Release.

The authority to impose orders of supervision and conditions of release on aliens ordered

removed rests with DHS.11

See 8 U.S.C. § 1231(a)(3). In this case, the Government has

determined that its capabilities to impose an order of supervision, with any attendant conditions

of release, cannot be reasonably expected to avoid a threat to national security or a risk of

terrorism. See Opp. at Exhibits 23-25.

DHS’s authority to impose orders of supervision and conditions of release, and its

implementing regulations, are intended to ensure an alien’s availability for removal. They are

not sufficient to protect national security. DHS’s authority is limited to such mechanisms as

monitoring the individual’s physical location, i.e. through electronic monitoring, limiting his or

her travel, and including a condition that the respondent refrain from committing any crimes.

See 8 U.S.C. § 1231(a)(3) (“the alien, pending removal, shall be subject to supervision under the

regulations prescribed by the [Secretary of Homeland Security]”); 8 C.F.R § 241.5 (order of

supervision requirements may include periodic reporting, advance approval for travel,

compliance with travel document efforts, and notice of change of address); Yusov v.

11

Although the statute was enacted prior to creation of DHS, and is framed in terms of the Attorney General’s

authorities, authorities relating to the enforcement and administration of the immigration laws, including the

removal of aliens, was transferred from the former Immigration and Naturalization Service (INS) to DHS under the

Homeland Security Act of 2002 (“HSA”). See 6 U.S.C. §§ 202(3), 251, 257; Jama v. ICE, 543 U.S. 335, 338 n.1

(2005) (DHS assumed responsibility for the INS removal program on the effective date of the HSA and the related

immigration enforcement responsibilities and discretion formerly vested in the Attorney General is now vested in

the Secretary).


18

Shaughnessey, 671 F. Supp. 2d 523, 530-31 (S.D.N.Y. 2009) (upholding government’s reporting

requirements and the condition of release that Yusov not commit any crimes as rationally related

to the government’s legitimate interests of locating an alien for removal and protecting public

safety and national security), aff’d 396 Fed. App’x. 780 (2d Cir. 2010). Should the court order

Petitioner’s release, DHS would impose reasonable conditions of release to the best of its

abilities, including but not limited to requirements for electronic location monitoring via GPS

technology, in-person reporting, home visits, limitations on travel, and continued cooperation in

seeking travel documents.12

See generally 8 C.F.R. § 241.5. But those conditions would be

insufficient to guard against the threat to the national security and a significant risk of terrorism.

See Opp. at Exhibit 23.

C. The Court Lacks Jurisdiction To Supervise Any Conditions Of Release.

If this Court grants the habeas petition in this case, it would not have jurisdiction to

supervise any conditions of release. See 8 U.S.C. § 1231(a)(3) (DHS has jurisdiction over

conditions of release); 8 C.F.R § 241.5 (implementing regulations). Petitioner filed his action

under 28 U.S.C. § 2241. See generally Amend. Pet. ¶ 21. “The writ of habeas corpus shall not

extend to a prisoner unless he . . . is in custody . . . .” 28 U.S.C. § 2241(c)(1). “When a habeas

petitioner challenges solely his detention, but is subsequently released prior to removal, courts

routinely dismiss the petition as moot, finding no persisting case in controversy.” Karamoke v.

DHS, No. 09-4089, 2009 WL 2575886, at *1 (S.D.N.Y. Aug. 20, 2009) (habeas petition was

moot where petitioner was released from immigration detention under an order of supervision);

see also Pierrilus v. ICE, 293 Fed. Appx. 78, 79-80 (2d Cir. 2008); but see Boumediene, 553

12

Additionally, nothing less than around-the-clock surveillance by agencies outside DHS will be required in this

case to protect against the threat of terrorism. See Opp. at Exhibit 23. The expense to the taxpayer and diversion of

resources from other counterterrorism and law enforcement investigations is a relevant factor that militates against

release. See Mathews, 424 U.S. at 335. And even round-the-clock surveillance is itself insufficient to guard against

the significant threat to the national security and significant risk of terrorism posed by Petitioner’s release.


19

U.S. at 777 (“the habeas court must have the power to order the conditional release of an

individual unlawfully detained – though release need not be the exclusive remedy and is not the

appropriate one in every case in which the writ is granted”).

In general, courts dismiss habeas petitions as moot when DHS releases a petitioner on

reasonable conditions, such as electronic monitoring. See Diawara v. DHS, No. 09-2512, 2010

WL 4225562, *1-2 (D. Md. Oct. 25, 2010) (court dismissed habeas petition by alien in ICE’s

Alternatives to Detention program, subject to electronic monitoring, weekly in-person reporting

and bi-weekly home visits, because Petitioner was “not in custody”) citing, e.g., Sayya v.

Farquharson, 382 F.3d 20, 22 n.1. (1st Cir. 2004) (release from detention under an order of

supervision mooted habeas challenge to extended deportation); cf. Nguyen v. B.I. Inc., 435 F.

Supp. 2d 1109, 1111-12 (D. Or. 2006) (“placement in [alternatives to detention] is not

detention”). To the extent courts have found habeas jurisdiction over conditions of release,

jurisdiction has been limited to review of the constitutionality and reasonableness of specific

conditions that DHS has imposed.13

See Yusov, 671 F. Supp. 2d. at 528 (finding jurisdiction to

review constitutional challenges to post-removal detention and supervision) citing Ruiz v.

Mukasey, 552 F.3d 269, 275 (2d Cir. 2009); Alvarez v. Holder, 454 Fed. Appx. 769 (11th Cir.

2011) (reviewing and upholding DHS conditions, which included electronic monitoring,

limitations on travel, and prevention of contact with specific individuals); but see Kalombo v.

Shanahan, No. 07-11350, 2009 WL 1788589, *6 (S.D.N.Y. Jun. 23, 2009) (court did not have

jurisdiction to review conditions of release because 8 U.S.C. § 1252(a)(2)(B) prevented review

of DHS’s discretionary determination of specific conditions).

13

Moreover, Petitioner has indicated that he intends to relocate to Washington, D.C. See Amend. Pet. at Exhibit 13.

Any subsequent habeas petition challenging his conditions of release would need to be filed in or transferred to the

jurisdiction in which he is located. See 8 U.S.C. § 2241(a); Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004)

(jurisdiction for habeas petitions challenging confinement lies in the district of confinement).


20

In short, if the Court orders Petitioner’s release, such release would moot this petition and

the Court will not hold a supervisory role over conditions of release or Petitioner’s adherence to

them. Petitioner may be able to seek future habeas review through challenges to his conditions

of release. But the court’s jurisdiction, if any, would be limited to review for constitutionality

and reasonableness of those conditions. Given the significant national security concerns

associated with Petitioner’s release, as identified by the Director of the FBI and acknowledged

by the Secretary of Homeland Security, the lack of judicial ability to supervise counsels against

release under an order of supervision in this case.

CONCLUSION

Petitioner is properly detained under 8 U.S.C. § 1231(a)(6) and its implementing

regulation at 8 C.F.R. § 241.14(d) because he presents a significant threat to the national security

and a significant risk of terrorism, and no conditions of release can reasonably be expected to

avoid the threat to the national security or risk of terrorism. Petitioner’s continued detention

pending removal is thus both authorized and warranted. Moreover, Respondents provided

Petitioner with notice of the factual basis for his continued detention and a fair opportunity to

rebut those factual assertions before the Secretary of Homeland Security. Petitioner was

therefore afforded sufficient procedural protections to guard against an erroneous deprivation of

his liberty, especially given his status as an arriving alien. The Government therefore

respectfully requests that this Court deny the petition for a writ of habeas corpus.

Dated: May 10, 2016 Respectfully submitted,

BENJAMIN C. MIZER

Principal Deputy Assistant Attorney General

Civil Division

WILLIAM C. PEACHEY

Director, District Court Section

Office of Immigration Litigation

CHRISTOPHER W. DEMPSEY

Assistant Director, District Court Section


P.O. Box 868, Ben Franklin Station

Washington, D.C. 20044

Phone: (202) 532-4110

Fax: (202) 305-7000

Email: [email protected]


21

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on May 10, 2016, I served a true copy of the

foregoing by E-mail and First Class U.S. Mail, postage-prepaid to Plaintiff’s counsel of record:

Robert L. Tucker

7114 Washington Ave.

St. Louis, MO 63130

(703) 527-1622


s/ Christopher W. Dempsey CHRISTOPHER W. DEMPSEY

Assistant Director

District Court Section


U.S. Department of Justice


1

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YROK

MOHAMMED RASHED :

Petitioner :

:

v. : 15-CV-00888-RJA

:

JOHN SANDWEG, et al : SEALED

Respondents :

:

PETTIONER’S RESPONSE TO GOVERNMENT’S SUPPLEMENTAL BRIEF

On April 25, 2016, this Court ordered the government to file a supplemental brief

addressing three issues: (1) the relevance of Hamdi v. Rumsfeld, 542 U.S. 507 (2004) to

the procedural due process issues presented by 8 C.F.R. § 241(d); (2) the relevance, if

any, of Shaunghnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953); and (3) the

process for releasing Petitioner on conditions pursuant to 8 U.S.C. § 1231(a)(6). The

government filed its supplemental brief on May 10, 2016. Petitioner hereby responds.

II. The Hamdi Issue

Hamdi v. Rumsfeld, 542 U.S. 507 (2004), held that certain minimal

procedural protections apply when the government attempts to hold a citizen as an

enemy combatant in an ongoing war. As explained below, for many of the

reasons suggested by the question posed in the Court’s Order, the procedures

followed here did not comply with the minimal procedural protections required by

Hamdi. But, before directly addressing these procedural shortfalls, it is important

to note that Hamdi is irrelevant to Petitioner’s case for two basic reasons.

A. Unlike Hamdi, There is no Statutory Authority for Petitioner’s

Detention


2

Hamdi ultimately addressed the issue of the process required by the

Constitution before detaining a citizen as an “enemy combatant” during an

ongoing war. But before reaching that question Hamdi recognized that it must

determine authorization for the detention ab initio.1 Only after identifying the

statutory basis for the detention was the question presented as to the

constitutionality of the process used to effectuate that detention. Thus, before

proceeding to analyze the due process required by the Constitution, the Court

noted that “[T]he threshold question before us is whether the Executive has the

authority to detain citizens found to be “enemy combatants.” Id. at 516.

The statutory basis for Mr. Hamdi’s detention was the Authorization for

Use of Military Force (AUMF), 115 Stat. 224, passed by Congress in the wake of

the 9/11 attacks. The AUMF authorized the President to use “all necessary and

appropriate force against . . . persons he determines . . aided the terrorist attacks.”

Id. at 510. After analyzing the language of the AUMF, Hamdi held that by

permitting the use of “necessary and appropriate force,” Congress had authorized

such detention until the cessation of active hostilities. Id. at 519-520. Only after

so interpreting the AUMF did the Court proceed to the constitutional issues..

Mr. Hamdi was captured in Afghanistan. Based on his association with

the Taliban, the government alleged that he was an “enemy combatant.” The

“evidence” allegedly supporting this conclusion was a statement of a military

official that records and reports he had reviewed suggested that Hamdi received

1 Hamdi did not reach the question of whether the government has some plenary power to

detain enemy combatants in wartime irrespective of statutory authorization. Id. at 516-

517. The government identifies no such plenary power here and none exists.


3

weapons training by and fought with the Taliban.2 Rejecting the government’s

argument that these factual assertions, standing alone without further inquiry,

justified Mr. Hamdi’s detention, the Court held that at a minimum due process

required that Mr. Hamdi not only receive notice of the factual basis for his

classification as an enemy combatant but that he also have a “fair opportunity to

rebut the Government’s factual assertions before a neutral decisionmaker.” Id. at

533.

Petitioner’s case is distinguishable from Hamdi at square one because the

government cannot hurdle the threshold statutory authorization issue. Here, the

purported authorization for Petitioner’s detention is 8 U.S.C. § 1231(a)(6). Like

its interpretation of the AUMF in the enemy combatant context, the Supreme

Court has interpreted § 1231(a)(6) in the context of detention of aliens beyond the

statutory removal period. But, unlike its conclusion in Hamdi that there was a

statutory basis for the detention at issue there, the Supreme Court has directly held

in Zadvydas v. Davis, 533 U.S. 678 (2001) and Clark v. Martinez, 543 U.S. 371

(2005) that § 1231(a)(6) does not authorize the detention at issue here. In order to

save the statute’s constitutionality, Zadvydas interpreted § 1231(a)(6) as

incorporating a presumption that the alien must be released after six months post-

removal period detention in the absence of a showing that removal is significantly

likely in the reasonably foreseeable future. Clark then removed any doubt as to

the reach of Zadvydas when it held that the operative language of the statute

applied to all three categories of aliens referenced in § 1231(a)(6). Thus, in sharp

2 The Government initially took an even more extreme position that it could hold Mr.

Hamdi indefinitely without formal charges and proceedings until it determined in its own

discretion whether further proceedings or access to counsel was warranted. Id. at 510-11.


4

relief to Hamdi’s interpretation of the AUMF, the Supreme Court has

authoritatively held that § 1231(a)(6) does not authorize Petitioner’s further

detention.

As noted previously, this Court only needs to reach the constitutional

issues if, for some not readily apparent reason, it determines that the statutory

construction principle of constitutional avoidance, which animated the Zadvydas

and Clark decisions, does not apply here. See Petitioner’s Reply to Response in

Opposition to Amended Petition for Writ of Habeas Corpus, at 23. The

Government provides no such reason. Resolution of the issue before this Court is

simply one of statutory construction and Zadvydas and Clark conclusively supply

the answer: there is no statutory authorization for the detention of Petitioner.

Thus, the short answer to the question posed by the Court’s Order is that Hamdi

does not control Petitioner’s case.

B. Unlike Hamdi, Petitioner’s Detention is Not Pursuant to the

President’s Authority under the War Powers Clause During Wartime

Petitioner’s case is distinguishable from Hamdi in another fundamental

aspect. Hamdi pitted the President’s wide-ranging authority under the War

Powers Clause to detain an enemy combatant captured on the battlefield in a time

of war against the individual’s right to due process. Thus, in deciding the extent

and nature of process that must be afforded, the Court repeatedly referred to

military considerations: i.e.: the detention of unlawful combatants as an

“important incident of war,” 542 U.S. at 518; “preventing a combatant’s return to

the battlefield [as] a fundamental incident of war,” id. at 519; Mr. Hamdi as a

“prisoner of war,” id. at 522; courts’ reluctance to intrude into the strategies of


5

war and military operations, id. at 531-32, 535; and the “respect and consideration

of the judgments of military authorities in matters relating to the actual

prosecution of a war.” Id. at 535. Despite recognition of the “exigencies of these

circumstances,” id. at 533, Hamdi nonetheless held that the “core elements” of

due process, such as appropriate notice, a fair opportunity to rebut the

Government’s factual assertions and a neutral decisionmaker must be provided

before detaining as an enemy combatant a citizen captured in wartime on the

battlefield. Id. at 533-34.

Petitioner’s case does not involve any of the above considerations.

Petitioner is not being detained pursuant to the President’s War Powers or to keep

him off a military battlefield. Nor was he captured during military operations

while engaged in war against the United States. Here the Government is simply

asserting a right to detain an alien in preventive detention because it fears he

might commit a crime if released, a power nowhere granted it by either statute or

the Constitution.3

C. Petitioner’s Detention Does Not Satisfy Even Minimal Due Process

Irrespective of its applicability, the answer to the question posed by the

Court is that the procedure followed here did not accord Petitioner even the

minimal “core due process” mandated by Hamdi.4 Petitioner was particularly

3 As previously noted, because the Due Process Clause does not distinguish between

citizens and aliens who are physically present in the United States, the same reasoning

employed by the government could be used to preventively detain a citizen with only the

barest of process accorded. See Reply to Response to Amended Petition for Writ of

Habeas Corpus, at 24, n. 13.

4 Both the Court’s Order of April 27 and the Government’s supplemental brief refer to

the “plurality” opinion in Hamdi. While that characterization is correct, it should be


6

disadvantaged and denied a fair opportunity to rebut the allegations that he has no

remorse and that he has maintained contact with one Ahmad Musa Jebril, whom

the government contends has ”openly supported militant fighters in Syria.”5

As to remorse, in the initial response to the § 241.14(d) Notice counsel

noted that Petitioner “has consistently and explicitly manifested a recognition that

that the actions taken by Palestinian groups such as the 15 of May were wrong,

including his and has voiced his regret for participation in these acts.” Amended

Petition for Writ of Habeas Corpus, Exhibit 13, at 4. Petitioner also submitted

statements by individuals who had worked with and observed him when he was

incarcerated in the DC Jail for several years, who corroborated his many

expressions of remorse. Id., Exhibit 13, at 6-7. In order to corroborate his

repeated expressions and demonstrations of remorse, Petitioner sought production

of FBI 302’s and other memoranda recounting extensive debriefing sessions with

noted that eight members of the Court agreed that at a minimum the core due process

protections announced by the plurality were required. See Opinions of J. Souter joined

by J. Ginsburg, concurring in part, dissenting in part, and concurring in the judgment, 542

U.S. at 539, and J. Scalia, joined by J. Stevens, dissenting. Id. at 554.

5 The § 241.14(d) Notice alleged five grounds supporting Petitioner’s continued

detention, three of which are not at issue concerning Petitioner’s opportunity to rebut: (1)

Petitioner admitted his conviction for an offense involving terrorism in the early 1980s;

(2) as evidenced by its omission from its Memorandum Decision, dated 12-17-16, ICE

apparently abandoned the argument that the alleged “refusal” to pay restitution justified

Petitioner’s continued detention, see Reply to Response to Amended Petition for Writ of

Habeas Corpus, at 30, n. 21 (although the Government now repeats the allegation in its

Supplemental Brief, at 16, despite the flimsy evidence concerning the issue. See Amended

Petition, Exhibit 16, at 1-2); and, (3) Petitioner did not challenge the allegation that he

had a history of flight over 30 years ago. As suggested by his vigorous efforts to have the

United States comply with its obligation under the plea agreement, Petitioner also does

not contest the allegation that he has no interest in staying in the United States. In any

event, all the allegations in the Notice are irrelevant absent a statutory and constitutional

basis for Petitioner’s preventive detention.


7

Petitioner over the years by both FBI agents and foreign officials with whom

Petitioner had voluntarily cooperated, as well as memoranda and reports

recounting interviews of Petitioner by ICE agents. Amended Petition, Exhibit 10

at 3; Exhibit 12 at 1.

These requests were met with a curt response that § 241.14 “does not

provide for nor contemplate the production of documents outside the record,”

reflecting ICE’s view that a “fair opportunity to rebut” did not include an

opportunity to produce evidence inconsistent with its underlying purpose. See

Amended Petition for Writ of Habeas Corpus, Exhibit 11, at 1. Thus, if ICE

claimed Petitioner was not remorseful because he allegedly said in some

unspecified context that “sometimes something has to be done to get attention,”

see Amended Petition, Exhibit 7 (Notice), at 2, its interpretation of that statement

was to be deemed conclusive of the “issue” regardless of countervailing evidence

Petitioner wished to produce.6 That ICE had no real interest in providing

Petitioner a meaningful opportunity to rebut its allegation concerning remorse or

giving any meaningful consideration to what he had to offer on the issue was

subsequently demonstrated in the interview of Petitioner on July 17, 2015, when

the ICE official did not even bother to ask Petitioner about remorse or his present

feelings about what had taken place in 1982, suggesting the outcome was

predetermined with service of the Notice.

6 As previously noted, whether or not Petitioner is remorseful for his conduct is irrelevant

to the constitutional issues presented by his preventive detention, at least in the absence

of a showing of present intent to commit a crime of violence or a present inability to

control his conduct. See Reply to Response to Amended Petition for Writ of Habeas

Corpus, at 34, n. 24.


8

The lack of a fair opportunity to rebut is even more directly evidenced by the Abu

Musa Jebril allegation. Neither the Notice nor the FBI Position upon which it relied

provided any basis for the allegation that Petitioner had “remained in contact” with Mr.

Jebril, who had been incarcerated with Petitioner at Terre Haute and who had after his

release allegedly “openly supported” militant fighters in Syria. See Amended Petition,

Exhibit 7 (Notice), at 2; Exhibit 9 (FBI Position), at ICE000013. In his formal response

to the Notice on July 7, 2014, Petitioner vigorously denied this allegation and complained

that the Notice provided no basis or support for the allegation that he had been in contact,

either directly or indirectly with Mr. Musa or had any knowledge of Mr. Musa’s alleged

activities since the latter’s release from prison. See Amended Petition, Exhibit 13, at 4-5.

And, in his sworn testimony on July 17, 2015, Petitioner again directly denied the Abu

Musa allegations. See Id., Exhibit 16 (Supplemental Response), at 2-3; Exhibit 14

(Sworn Testimony), at ICE0000245-251; 302). Despite the fact that the government

never produced an iota of evidence to back up this allegation and in the face of

Petitioner’s sworn denial, ICE referenced the unsupported conclusion in its Memorandum

Decision. See Reply to Response to Amended Petition, Exhibit 1, at 5. This lack of

corroboration coupled with Petitioner’s inability to cross-examine or otherwise confront

the allegations in the FBI Memorandum demonstrates Petitioner’s lack of a meaningful

opportunity to rebut this baseless allegation.7

Finally, as demonstrated by this case, there is an overarching Hamdi flaw

in the § 241.14(d) procedure. Regardless of the nature and degree of the process

provided, the opportunity to defend is meaningless in the absence of a neutral

7 It is unclear whether the Government has abandoned this allegation, as it is not

referenced in its Supplemental Brief when recounting the “evidence” why Petitioner

should not be released. See G.Supp.Br. at 15-17.


9

decisionmaker. In an attempt to address this concern, the Government invents a

new category of arbiter it calls the “sufficiently neutral decisionmaker.”

G.Supp.Br. at 12 (Emphasis added). This appellation is both a concession of, and

an attempt to minimize, the unavoidable fact that neither the Secretary of

Homeland Security nor the Directors of ICE or the FBI are completely neutral.

“Sufficiently neutral” may be sufficient for the Government’s purpose, but not the

Constitution’s. A decisionmaker is either neutral or not. The Government cites

no case suggesting that the Due Process Clause recognizes that deprivations of

liberty can be entrusted to such “sufficiently neutral” decisionmakers. Nor does it

explain how fall short of complete neutrality would be constitutionally acceptable

or what the term otherwise means. And, more important, the Government cites no

authority suggesting that the Director of Homeland Security, Director of ICE or

Director of the FBI, acting in their Executive capacities, can be viewed as neutral

decisionmakers acting in a judicial capacity. See Ward v. Village of Monroeville,

409 U.S. 57, 60 (1972) (Executive officer’s responsibilities inconsistent with

judicial duties and created a “situation in which an official perforce occupies two

practically and seriously inconsistent positions, one partial and the other judicial,

[and] necessarily involves a lack of due process of law . . .” quoting Tumey v.

Ohio, 273 U.S. 510, 534 (1972)).

In a footnote the government recites language from Butz v. Economou, 438 U.S.

478, 513-14 (1978) that administrative law judges are “functionally comparable” to

Article III judges, but does explain the relevance of this point since the § 241.14(d)


10

detention scheme does not involve an immigration judge or similar judicial official.8

Finally, the Government makes no attempt to explain how this scheme is different from

cases where the Supreme Court has held that administrative officials or executive officers

that bring charges are not neutral decisionmakers within the meaning of the Due Process

Clause. See Amended Petition for Writ of Habeas Corpus, at 26.

Finally, the Government maintains that the availability of habeas corpus relief

cures the lack of a neutral decisionmaker. G.Supp.Br. 13. But, the availability of habeas

corpus is not a substitute for constitutional infirmities in the underlying process. Rather,

habeas corpus is simply the mechanism that the Constitution provides for providing

Petitioner relief from unconstitutional detention.9 See Ward v. Village of Monroeville,

409 U.S. at 61-62 (Where Mayor was not an impartial adjudicator in initial hearing, the

availability of an appeal before a judicial official is constitutionally insignificant, as

8 Compare this with the detailed detention scheme of 8 C.F.R. § 214.14 (f), which permits

the detention of certain aliens who are “likely to engage in acts of violence in the future”

and which provides for the extensive involvement of immigration judges at every stage of

the process, from review of the legal sufficiency of the initial notice to adjudicative

hearings and appeals. See Petitioner’s Reply to Response in Opposition to Amended

Petition for Writ of Habeas Corpus, at 16-17.

9 In suggesting that the availability of habeas corpus relief cures the lack of a neutral

decisionmaker, the government misleadingly implies that Hamdi held that the detention

there could be satisfied as long at it has “basis in fact.” G.Supp.Br. 13. This is

suspiciously close to suggesting that Hamdi approved a “some evidence” standard, one

which “focuses [] exclusively on the factual basis supplied by the Executive to support its

own determination.” 542 U.S. at 527. In fact, Hamdi directly rejected this standard even

in the limited due process inquiry required for wartime designation of enemy combatants.

Id. at 537 (“Because we conclude that due process requires some system for the citizen-

detainee to refute his classification, the proposed ‘some evidence’ standard is

inadequate.”). Setting aside that regardless of its allegations, preventive detention is

neither statutorily nor constitutionally authorized here, the Government’s rote recitals of

its standardless conclusions, with no attempt to address the many issues raised by

Petitioner concerning those allegations, suggests a mistaken view that it can justify

Petitioner’s detention by merely proffering “some evidence” that might facially justify

the detention. See G.Supp.Br. 16; Amended Petition, at 10, 14-19, 20-22; Reply, at 30-40.


11

“Petitioner [was] entitled to a neutral and detached judge in the first instance.”).

D. The Hamdi Procedures are Insufficient to Justify Non-Military Related

Preventive Detention

Although the process provided Petitioner did not even comply with the minimal

due process protections referenced in Hamdi, it must be emphasized that the core due

process protections sufficient to justify preventive detention of an enemy combatant

during wartime are insufficient to justify a preventive detention scheme not based on

such exigencies. A process which allows the preventive detention of an individual

physically present in the United States without any substantive showing of a present

inability to control one’s conduct, without any requirement that the Government meet any

particular burden of proof, without providing the individual the right to fully examine and

confront the evidence upon which the detention is based, without requiring the United

States to produce evidence in its possession repudiating the purported basis for detention

and without the involvement of a neutral and detached judicial official is one without

precedent in the jurisprudence of his country and contrary to the fundamental values

embodied in the Due Process Clause of the Fifth Amendment. See Amended Petition for

Writ of Habeas Corpus, at 23-30; Reply to Response to Amended Petition for Writ of

Habeas Corpus, at 23-28.

II. The Government’s Mezei Argument Was Directly Rejected in Zadyvdas

Near the conclusion of its rebuttal argument before the Court on April 21, the

government referenced Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953).

That it had not previously cited Mezei in any prior pleading or argument is unsurprising,

as the Supreme Court directly rejected this very argument in Zadvydas. see 533 S. Ct. at

692-95.


12

Mezei involved a once lawfully admitted alien who left the country for an

extended period and thereby was not automatically entitled to readmission. When Mr.

Mezei attempted to reenter the United States he was detained on Ellis Island because the

Government could not find another country to accept him. The fact that he had in the

past been lawfully admitted to the United States was irrelevant and Mr. Mezei was

treated as any other alien stopped at the border, who is deemed not to have entered the

United States and thus not entitled to constitutional protections.

The controlling distinction for constitutional purposes between Zadvydas and

Mezei is essentially territorial. Having physically left the United States for an extended

period and no longer entitled to readmission, Mr. Mezei was in the same position as any

other alien seeking legal admission to the United States. In contrast, the Supreme Court

noted that the petitioners in Zadvydas were physically present in the United States. This

“critical distinction,” 533 U.S. at 694, applies here as Petitioner has been physically

present in the United States for almost eighteen years. Even if he had “passed through

our gates illegally” (which he didn’t), Petitioner would be entitled to the “traditional

standards of fairness encompassed in due process of law.” Id. And, the fact that

Petitioner is subject to a final order of deportation does not strip him of such rights. Id.

694 (citing cases).

The Government attempts to avoid Zadvydas’ rejection of its Mezei argument by

proffering a fanciful theory that, like Mr. Mezei, Petitioner is not actually in the United

States. Rather, in the government’s imagined scenario, he is simply an “arriving alien”

who has never effectuated entry because he was paroled into the United States for

prosecution. G.Supp.Br. 4-8. The Government cites Zadyvdas’ allowance that there is a


13

distinction in immigration law between arriving aliens and those who have physically

entered the United States, id. at 5, n. 3, citing Zadvydas, 533 U.S. at 693, but omits the

immediately following sentence in the opinion:

It is well established that certain constitutional protections available to

persons inside the United States are unavailable to aliens outside of our

geographic borders. [Citations omitted]. But once an alien enters the

country, the legal circumstance changes, for the Due Process Clause

applies to all “persons” within the United States, including aliens,

whether their presence here is lawful, unlawful, temporary or permanent.”

Id. (Emphasis added).

In addition to papering over this dispositive language, which reflects a long-

standing principle of constitutional law,10

the Government’s “arriving alien” abstraction

has additional problems. First, the Government cites no case standing for the counter-

intuitive proposition that an individual who has been brought to the United States and

remained here for eighteen years has not physically entered the country. Second, the

Government’s argument basically reduces to an assertion that because Petitioner was

paroled into the United States for prosecution, a status which has been terminated, he is

otherwise ineligible for admission and in the same position as Mr. Mezei. But, whether

Petitioner is inadmissible under immigration law is irrelevant, as Clark directly held that

the rule of Zadvydas applies to inadmissible aliens, which is the first category of aliens

listed in § 1231(a)(6).11

Thus, while an inadmissible alien, like Mr. Mezei, who is

10

The principle that aliens physically present in the United States are “persons” and

enjoy the protections of the equal protection and due process clauses dates back 130 years

to the seminal case of Yick Wo v. Hopkins, 118 U.S. 356 (1886).

11

In n. 5 at page 7 of its supplemental brief, the Government admits the unavoidable –

that Clark directly expanded Zadvydas to arriving aliens - but attempts to deny its

significance by reading Clark as merely interpreting 8 U.S.C. § 1236(a)(6) in the post-

removal context rather than eroding any purported constitutional distinction between

“arriving and admitted aliens.” As applied here, this argument fails to take into account


14

stopped at the border may have reduced constitutional protections, the same is not true

for an alien such as Petitioner who is physically present in the United States and has been

for almost two decades. Third, the facts in Clark further collapse the government’s

theory, as both petitioners there had been admitted into the United States on parole and

were being held because their parole had been revoked. Even if his parole status into the

United States for prosecution has expired, Petitioner stands in the identical position as the

two petitioners in Clark.

When an individual has been in this country as long as Petitioner and remains

here, the argument that the person has not effectuated entry and is thus similar to Mr.

Mezei has no logical, practical or legal support and the government provides none in its

supplemental brief.12

Nor does it offer any explanation why the Due Process Clause

protects an alien who has illegally entered the country but not someone such as Petitioner

who did not.

the controlling language from Zadvydas, cited above, but Petitioner need not quibble with

this position, nor need the Court give it more than passing attention. As the Government

correctly asserts, Clark is a statutory interpretation case but the Government again misses

the decisive point that the constitutional inquiry ends there. This is the principle of

constitutional avoidance which underlies both Zadvydas and Clark.

12

The Government cites the Supreme Court’s recognition of Congress’ broad power in

the field of immigration law. G.Supp.Br. 5, n.3. Petitioner takes no issue with this

general principle. But, as noted above, Congress has spoken in reference to the removal

of aliens in § 1231(a)(6) and the Supreme Court has both conclusively interpreted the

reach of the statute and directly rejected the Government’s “arriving alien” argument in

Zadvydas and Clark. Thus, whatever relevance the “arriving alien” distinction may have

for questions otherwise involving immigration law, it has none here. Cases such as

Ibragimov v. Gonzales, 476 F.2d 125 (2d Cir. 2007), see G.Supp.Br. 5, which involve an

alien seeking admission to the United States and who, upon denial of entry, can be

returned to another country, are inapposite to the situation of an alien physically in the

United States who cannot be removed in the reasonably foreseeable future.


15

III. The Court Can and Should Retain Jurisdiction over Petitioner Pending his

Removal

The Court’s Order directs the Government to address two questions concerning

the release of Petitioner pursuant to 8 U.S.C. § 1231(a)(3): (1) whether, if the Court

releases Petitioner pursuant to § 1231(a)(3), it would retain jurisdiction over him pending

his removal; and (2) what role, if any, the Court would play in supervision of Petitioner’s

conditions of release. The Court also directs the Government to generally identify

conditions of release that can reasonably be expected to protect its interests.

Despite the fact that the questions posed by the Court’s Order presuppose

Petitioner’s release on conditions, rather than proceeding from this premise the

Government begins by rehashing the same arguments it proffers in support of Petitioner’s

continued detention. G.Supp.Br. 15-17. But, as has been pointed out throughout these

proceedings, even if the allegations are true (which other than the fact of Petitioner’s

conviction and ensuing flight in the 1980s, they are not) and the procedure followed here

had complied with due process (which it did not), the government would not be entitled

to preventively detain Petitioner.

The government then insists that this Court would lack jurisdiction to supervise

the conditions of release. Curiously, this directly contradicts the position the Government

took at the hearing on April 21, when it requested that this Court retain jurisdiction so

that contempt sanctions could be imposed upon violation of the conditions of release. Tr.

Oral Argument, 4-21-16, at 38. This pivot seemingly reflects more of a scorched-earth

litigation tactic than a principled stance as the Government offers no reasoning for its

change of heart and instead only cites cases that are clearly inapposite. See G.Supp.Br.

18-19. Karamoke v. DHS, 2009 WL 2575886, at *1 (S.D.N.Y., Aug. 20, 2009) did hold


16

that a habeas petition became moot when the petitioner was released from detention by

Homeland Security (DHS) prior to resolution of his petition for habeas corpus relief

because a case or controversy no longer existed.13

But, that is not the case here as DHS

has elected not to release Petitioner. There is no issue as whether a case or controversy

presently exists between Petitioner and the Government. And, Petitioner’s release on

conditions will not moot the case or controversy in any event as his petition seeks to have

the Court retain jurisdiction and monitor the government’s efforts to remove him in

accordance with his plea agreement.14

The same holds true for the cases cited at page 19 of the Government’s

supplemental brief. In each of the cited cases, the Government (DHS or ICE) released

the alien under conditions prior to resolution of the associated petition for habeas corpus

relief, leaving only issues concerning whether the habeas petition became moot or the

extent to which the court had jurisdiction to review the conditions or release that had

been imposed by the Government. Here, having declined to release Petitioner, the

Government can hardly be heard to claim mootness if Petitioner is released on conditions

pursuant a judgment of this Court, whether the Court independently sets the conditions of

release or incorporates conditions of release imposed or suggested by the Government

into its judgment. See infra. Had Homeland Security released Petitioner on conditions

pursuant to § 1231(a)(3) and 8 C.F.R. § 241.13(h)(setting conditions of relief for aliens

13

The petitioner in Karamoke did not oppose the Government’s motion to dismiss. Id.

14

The other case cited by the Government is similar although in a different context. In

Pierrilus v. ICE, 293 Fed. Appx. 78, 79080 (2d Cir. 2008), the fact that a petitioner

seeking review of a denial of asylum order was no longer in detention mooted that part of

his claim relating to a challenge to his length of detention. Neither Karamoke nor

Pierrilus indicate whether the petitioners were released on conditions.


17

not removable in reasonably foreseeable future), this Court might be limited to review of

those conditions for reasonableness, even though the plea agreement claim would remain.

Contrary to the Government’s assertion, this Court clearly has the power to

maintain jurisdiction over Petitioner after ordering his release on conditions. The

Supreme Court has long recognized the broad power accorded a federal court in

enforcing its judgments. Riggs v. Johnson County, 6 Wall. 166, 187 (1868) (Without

jurisdiction to enforce a judgment entered by a federal court, “the judicial power would

be incomplete and entirely inadequate to the purposes for which it was conferred by the

Constitution.”). And, Congress has specifically given courts wide discretion in

fashioning remedies in granting habeas corpus relief. Thus, 28 U.S.C. § 2243, which

provides that a habeas court shall “dispose of the matter as law and justice provide” gives

this Court “broad discretion in conditioning a judgment granting habeas relief.” Hilton v.

Braunskill, 481 U.S. 770, 775 (1987). Hilton clearly suggests the Court maintains

jurisdiction over the conditions of release after granting habeas corpus release. After

noting that “a federal court [has] ‘the largest power to control and direct the form of

judgment to be entered in cases brought up before it on habeas corpus,’” (emphasis in

original)(citation omitted), the Court noted that “it would make little sense if this broad

discretion allowed in fashioning the judgment granting relief to a habeas petitioner were

to evaporate suddenly when either the district court or court of appeal turns to

consideration of whether the judgment granting habeas relief should be stayed pending

appeal.” Id. at 775.15

Part and parcel of this power is the discretion to either deny a

15

A leading treatise extensively catalogues the wide discretion permitted habeas courts in

fashioning different forms of relief. See 2 Hertz and Liebman, Federal Habeas Corpus

Practice and Procedure, § 33.4 (Seventh Edition 2015) (Remedies other than immediate

release or retrial of guilt).


18

successful habeas petitioner’s release pending appeal or to set conditions of release.

Where a court has the power to set conditions of release, it obviously maintains

jurisdiction to enforce those conditions. See Peacock v. Thomas, 516 U.S. 349, 356-357

(1996) (discussing broad power of federal courts to enforce judgments, including

ancillary jurisdiction over supplementary proceedings).

The question remains as to whether this Court or the Department of Homeland

Security should set the conditions of release.16

In the exercise of its broad discretion in

fashioning habeas corpus relief, this Court can either directly set the conditions of release

(after affording the Government an opportunity to be heard, as it already has) or delegate

the initial setting of conditions to DHS, subject to review by the Court for reasonableness

and incorporation into its judgment. It appears that courts have taken both approaches.

Compare Bah v. Cangemi, 489 F.Supp. 2d 905, 923-24 (D. Minnesota) (granting

Zadvydas relief and ordering government to impose release conditions per 8 C.F.R. §

241.13(h)) with Seretse-Khama v. Ashcroft, 215 F.Supp. 37, 54 (D.D.C. 2002) (ordering

release per Zadvydas and inviting the Government to suggest conditions of release it

deems appropriate).

The Government states that DHS would impose “reasonable conditions,”

including “requirements for electronic location monitoring via GPA technology, in-

person reporting, home visits, limitations on travel, and continued cooperation in seeking

travel documents.” G.Supp.Br. 18. Without conceding their reasonableness or necessity,

Petitioner has no objection to these conditions. But, Petitioner believes that the

16

While Zadyvydas envisions that aliens whose removal is expected in the reasonably

foreseeable future will be released on “supervision under release conditions that may not

be violated,” 533 U.S. at 696, it does not directly answer the question of who imposes the

conditions.


19

conditions of release should nonetheless be set by this Court rather than DHS. The

Government accompanies its proposed conditions of release with the open-ended

language of “including but not limited to.” Because DHS has illegally held Petitioner for

over three years after completion of his sentence and in light of the Government’s

consistent delaying tactics and lack of good-faith as detailed throughout the pleadings in

this case, Petitioner believes the Court should set the conditions of release and not give

the Government any additional leeway to further delay his release. The Government has

had the opportunity to release Petitioner on appropriate conditions and elected not to do

so, choosing instead to interpose arguments with no basis in law or fact. It has also been

afforded the opportunity to propose conditions of release to this Court. Nothing more is

required.17

At a minimum, the conditions of relief should be incorporated into a

judgment of the Court. If Petitioner violates those conditions, the Government can seek

an appropriate remedy with this Court.

Finally, in a concluding footnote, the Government suggests that this Court would

lose jurisdiction if Petitioner is permitted to reside in a residential house in Washington,

D.C., citing 28 U.S.C. § 2241 and Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004), for the

proposition that jurisdiction for habeas petitions lies in the district of confinement.

Again, this is an argument that is difficult to follow, as Petitioner transferred his Petition

for Writ of Habeas Corpus to this district because this is where he is confined. If

Petitioner is released on conditions and permitted to reside in the District of Columbia,

as requested, he is not filing a new petition challenging his conditions of confinement.

17

8 U.S.C. § 1231(a)(3) describes conditions of release that the Attorney General may

consider in releasing aliens who have been ordered removed. That statute applies only

when DHS or the Attorney General has elected to release the alien, which is not the case

here. When, in contrast, a court orders the alien’s release it may in its discretion consider

imposing some combination of these conditions.


20

He would still be in the constructive custody of this Court and subject to this Court’s

enforcement of its judgment. Cf. U.S. v. Poole, 531 F.3d 263, 271 (4th

Cir. 2008)(writ to

another district works a “mere loan” of petitioner and does not affect custody for

purpose of habeas jurisdiction); Miller v. Hambrick, 905 F.2d 259, 262 (Same: “The writ

authorizes a trip not a change of custodians.”).

Finally, although unnecessary, Petitioner will nonetheless file a waiver of any

future objection to jurisdiction in this Court. See FRCP 12(h)(1) (party may waive

objection to personal jurisdiction).

/s/ Robert L Tucker

Robert L. Tucker


St. Louis, MO 63130

Telephone: (703) 527-1622


DC Bar No. 99984


21

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on May 24, 2016, I sent a paper copy of this

sealed motion, accompanied by DVD on which it was burned, by overnight mail to the

Court and that a true copy of the foregoing was on this date served electronically upon

the following:

Christopher W. Dempsey

Senior Litigation Counsel

District Court Section


U.S. Department of Justice

P.O. Box 868, Ben Franklin Station

Washington, D.C. 20044

[email protected]

/s/ Robert L Tucker

Robert L. Tucker


St. Louis, MO 63130


22


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