Sunday, December 07, 2008

Khouzam: Due Process Rights Exist For Removal Orders Including Terminating Deferral of Removal Based on Diplomatic Assurances

Khouzam v. Chertoff
Nos. 07-2926 & 08-1094
December 5, 2008
Judges Rendell, Smith, and Fisher (decision by Judge Rendell)

Arguing for Mr. Khouzam were Lee Gelernt and Amrit Singh (ACLU). Participating in the briefs were Judy Rabinovitz (ACLU), Mortan H. Sklar (World Organization for Human Rights USA), Witold J. Walczak (ACLU Pittsburgh). For amici were Demetrios K. Stratis (for American Center for Law and Justice and European Centre for Law and Justice), Baher A. Azmy of Seton Hall Law School's Center for Social Justice (for Scholars of International Human Rights Law), Jane M. Ricci and Eleanor H. Smith (of Zuckerman Spaeder for Organisation Mondiale Contre la Torture and The Redress Trust), and Paul R. Taskier (of Dickstein Shapiro for Human Rights Watch, Amnesty International, Center for Constitutional Rights, International Commission of Jurists, International Federation for Human Rights).

For the government was Thomas H. Dupree, Jr. Assist on the brief was Douglas E. Ginsburg of OIL.

The Third Circuit held that Congress intended to provide an adequate alternative to habeas actions through circuit court review of petitions for review. This means that the circuit courts should provide for the same protections in petitions for review that a district court would have offered in a habeas petition. In these types of cases, then, circuit courts have all the powers that a district court traditionally would have in a habeas case. It was not raised in this case, but logically this would include the type of factual development that is commonly seen in a habeas case but before REAL ID would not usually be seen at a circuit court. Congress is essentially forcing the circuit courts to expand their procedures to include what district courts handle in habeas cases.

The Third Circuit concluded that it could review the DHS termination of deferral of removal under CAT protection because that was a final order of removal. It does not matter that the inital order of removal (combined with an order for deferral of removal) was placed many years before -- when DHS terminated deferral of removal and sought to deport someone who would be tortured if returned to Egypt, it triggered a new final order of removal that the immigrant was allowed to appeal.

In a blow to the government's expansive view of judicial deference to political questions and the rule of non-inquiry (in which courts in extradition cases often avoid evaluating how fair another country's system is), the Third Circuit agreed with Mr. Khouzam that the courts have the power to review the government's termination of deferral of removal and its assertion that it received adequate diplomatic assurances from Egypt. In a way, this ruling gives a hint at a new vision of the plenary power doctrine -- one that gives less deference to the government and increased judicial review.

The political question doctrine does not shield the case from judicial review because the Constitution does not give the Executive branch the authority to determine whether deportation complies with immigration statutes and regulations. The case involves normal principles of regulatory construction as opposed to being stuck in a hazy world that lacks analytical standards. The case involves basic due process principles and the ability to question certain factual assertions being made by the government. Due process requirements do not implicate diplomatic policy concerns. Also, a President's promise that something would be done does not handcuff the courts into avoiding review for fear of embarrassing the President. Otherwise, a President could always avoid judicial review by making numerous promises to other countries and creating embarrassing situations.

The Third Circuit held that DHS is allowed to create regulations that permit particular review of whether diplomatic assurances can be adequate, even when the country has a record of human rights violations.

Turning to due process rights when DHS considers a specific case, the Third Circuit held that there must be some level of due process given. The Third Circuit rejected the government's attempt to portray certain regulations as prohibiting procedures to challenge diplomatic assurances -- there aren't any limits in the law.

The Third Circuit ruled that due process rights exist for immigrants in removal proceedings in the United States, even for those initially stopped at the border. Basic due process rights include receiving notice and a full and fair hearing on the issues. The government is not allowed to keep hidden basic information about the diplomatic assurances it obtained from Egypt and must permit an opportunity for Mr. Khouzam to submit evidence about whether any assurances would be adequate. The government also must give Mr. Khouzam an opportunity to address the issue.

Also, the Third Circuit ruled that for terminating deferral of removal under CAT, there is a right to have the decision reviewed by a neutral decisionmaker who would make an individualized determination.

The Third Circuit also concluded that when someone is denied the opportunity even to present evidence and have an issue heard, there is no need to prove that the denial was prejudicial -- where there is a complete lack of process, there is no need to show how it prejudiced the case. Prejudice to the right to access the court is established upon showing the inability to bring a claim to the court -- it is irrelevant whether the claim if heard would ultimately succeed.

The Third Circuit overturned the BIA and negated the government's attempt to terminate the deferral of removal that Mr. Khouzam had received.


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