Hassoun v. Sessions, Case # 18-CV-586-FPG

ADHAM HASSOUN, Petitioner, v. MR. JEFF SESSIONS, Attorney General of the United States, et al., Respondents.

Case # 18-CV-586-FPG

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

January 2, 2019

DECISION AND ORDER

INTRODUCTION

Petitioner Adham Hassoun, a civil immigration detainee detained at the Buffalo Federal Detention Facility, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 3. He claims that he has been in U.S. Immigration and Customs Enforcement ("ICE") custody beyond the statutory removal period and that his detention violates his constitutional rights. See id. The parties have fully briefed the issues raised in the petition. In addition, the New York Civil Liberties Union Foundation ("NYCLU") has filed a brief as amicus curiae to alert the Court to certain important legal questions. Having reviewed the record and the briefing, the Court finds that a hearing is unnecessary to resolve the petition. For the reasons that follow, the petition is GRANTED.

BACKGROUND

The following facts are drawn from the record. Petitioner is a Palestinian who, while born in Lebanon, is not a citizen of Lebanon. Petitioner was first admitted to the United States in 1989 as a nonimmigrant "visitor for pleasure," which was changed in 1990 to that of a nonimmigrant student. ECF No. 13-1 at 2. In 2002, after Petitioner failed to comply with the conditions of his student visa, immigration authorities detained him and instituted removal proceedings. See 8 U.S.C. § 1227(a)(1)(C)(i) (stating that an alien who fails to comply with the conditions of nonimmigrant status is deportable). Petitioner's order of removal became administratively final in 2003.

In early 2004, before Petitioner could be removed, he was taken into federal custody on criminal charges. Ultimately, Petitioner was convicted on three charges: (1) conspiracy to murder, kidnap and maim persons in a foreign country (18 U.S.C. § 956(a)(1)); (2) conspiracy to provide material support for terrorism (18 U.S.C. § 371); and (3) providing material support to terrorists (18 U.S.C. § 2339A(a)). See ECF No. 13-1 at 3. Petitioner completed his term of imprisonment in October 2017, at which time he was again detained by immigration authorities on his original order of removal. ICE began "engag[ing] with multiple foreign governments concerning [Petitioner's] removal." Id.

Petitioner has remained in custody at the Buffalo Federal Detention Facility since October 2017. At present, Respondents do not justify Petitioner's continued detention on the basis of his criminal convictions or his threat to the community. See ECF No. 14 at 6-7. Instead, Petitioner is being detained because he failed to comply with the conditions of his nonimmigrant status and because, in Respondents' view, his removal is likely to occur in the reasonably foreseeable future. See id.; ECF No. 29-13; see also 8 U.S.C. § 1231(a)(6) (permitting detention of aliens who are removable for failure to comply with conditions of nonimmigrant status).

In May 2018, Petitioner filed the present petition, challenging his continued detention and arguing that it was unlikely that he would be removed in the reasonably foreseeable future. See ECF No. 1.

Around the time the petition was filed, immigration authorities were seeking to remove Petitioner to the territory of the West Bank. That avenue appeared to be promising. In June 2018, the Palestinian Liberation Organization ("PLO")—through its representatives located in Washington, D.C.—notified ICE that it would be willing to issue travel documents to Petitioner to enter the West Bank. However, removal to the West Bank requires transit through, and therefore authorization from, Jordan and Israel. See ECF No. 45-1 at 2. Alternatively, the PLO indicated that it would issue Petitioner a passport if another country agreed to accept him.

By late July 2018, immigration authorities had submitted a request to Israel for authorization. In addition, travel-document requests had been submitted to "the Governments of Egypt, Iraq, Israel, Lebanon, the Palestinian Territories, Somalia, Sweden, and the United Arab Emirates." ECF No. 13-1 at 3. Saudi Arabia was also approached. ECF No. 45-1 at 2. In a declaration dated July 27, 2018, Michael Bernacke, Unit Chief for Removal and International Operations at ICE, opined that Petitioner's removal was "significantly likely in the reasonably foreseeable future." ECF No. 13-1 at 4.

Obstacles have since arisen that complicate Petitioner's removal to the West Bank. In September 2018, the PLO's Washington, D.C. office was closed, potentially casting some doubt as to whether ICE could still obtain travel documents. Nevertheless, ICE indicates that it has "continued to engage directly with Palestinian Authority officials in the West Bank for travel documents in numerous cases" and that there is "no indication that the Palestinian Authority considers the decision of the [Washington] PLO delegation concerning [Petitioner's] travel documents to be invalid." ECF No. 45-1 at 2. Furthermore, in November 2018, Jordan unilaterally terminated the "Memorandum of Coordination" under which it arranged Palestinian deportations with ICE. A new Memorandum of Coordination is being negotiated with Jordan, but Respondentsprovide no timeline for when those negotiations would be complete, let alone for when Petitioner could obtain travel authorization. The request for authorization from Israel remains pending, and Respondents offer no timeline or update as to the status of that request.

Furthermore, Sweden, the United Arab Emirates, Iraq, and Lebanon have declined ICE's travel-document requests. ECF No. 15-1 at 2; ECF No. 45 at 3. The requests to the other governments are apparently pending without any new developments.

To remove Petitioner, ICE has also sought the assistance of an interagency working group consisting of various government entities, including the Department of State. In Fall 2018, the State Department identified several countries that might accept Petitioner. In particular, there is one unspecified country that the State Department believes is "most likely to consider seriously a U.S. request" to accept Petitioner. ECF No. 45-2 at 4. There are delicate diplomatic considerations in play, however. These considerations are set forth in the declaration of Hillary Johnson, a deputy coordinator with the Department of State. See id. at 2.

For one thing, to maximize the likelihood of success, "the U.S. government would need to make the request of that one country alone and not concurrently with requests to other nations. This is because the country would need to engage in a comprehensive decision-making process in order to accept [Petitioner]." Id. at 4. In addition, the country would need to remain anonymous during this process. Id. at 5. Johnson avers that on November 28, 2018, the State Department issued an official "Démarche" cable to the U.S. Embassy in the unspecified country, "instructing the Embassy to contact the domestic government at the highest appropriate level."¹ Id. at 4. On December 6, 2018, "[t]he U.S. Ambassador personally presented the request that the country accept [Petitioner's] removal to a high-ranking official in the Ministry of Foreign Affairs." Id. at5. That official "agreed to give the request serious consideration, and to discuss the U.S. request with others across his government." Id. Respondents offer no particular timeline in which removal could be effectuated to the unspecified country, but Johnson indicates that the State Department "hope[s] to have some response to [the] request by mid-January." Id. There are two other countries to which the State Department may send requests if the "present, positive, assessment of the likelihood of removal to the [unspecified] country . . . change[s]." Id.

DISCUSSION

Petitioner requests release from custody on the ground that there is no significant likelihood that he will be removed in the reasonably foreseeable future. He raises three claims: (1) that his continued detention violates 8 U.S.C. § 1231(a)(6); (2) that his continued detention violates his substantive due process rights; and (3) that ICE's administrative review of his custody status is so deficient as to violate his procedural due process rights. The Court first addresses Petitioner's statutory claim.

I. Petitioner's First Claim - Violation of 8 U.S.C. § 1231(a)(6)

a. Legal Standard

The Court begins by providing some background on the statutory scheme governing the detention of aliens who have been ordered removed. Under 8 U.S.C. § 1231(a)(1)(A), "aliens ordered removed shall be removed by the Attorney General within [a] 90-day 'removal period.'" Turkmen v. Ashcroft, 589 F.3d 542, 547 (2d Cir. 2009). "The government is required to detain an alien ordered removed until removal is effected, at least for the removal period." Id. (citing 8 U.S.C. § 1231(a)(2)). If removal is not effectuated within the removal period, "the alien, pending removal, shall be subject to supervision under regulations prescribed by the Attorney General." 8 U.S.C. § 1231(a)(3).

In addition, there is a "special statute [that] authorizes further detention if the Government fails to remove the alien" during the removal period. Zadvydas v. Davis, 533 U.S. 678, 682 (2001). Specifically, 8 U.S.C. § 1231(a)(6) gives the government the discretion to detain certain categories of aliens:

An alien ordered removed [1] who is inadmissible . . . [2] [or] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision . . . .

Id. (quoting 8 U.S.C. § 1231(a)(6)). By its plain language, the statute does not...