Hassoun v. Searls

• Citation: 968 F.3d 190
• Decision Date: 30 July 2020
• Docket Number: August Term 2019,No. 20-2056-cv,20-2056-cv
• Parties: Adham Amin HASSOUN, Petitioner-Appellee, v. Jeffrey SEARLS, in his official capacity as Acting Assistant Field Office Director and Administrator of the Buffalo Federal Detention Facility, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

968 F.3d 190

Adham Amin HASSOUN, Petitioner-Appellee,

v.Jeffrey SEARLS, in his official capacity as Acting Assistant Field Office Director and Administrator of the Buffalo Federal Detention Facility, Respondent-Appellant.

No. 20-2056-cv

August Term 2019

United States Court of Appeals, Second Circuit.

Submitted: July 14, 2020

Decided: July 30, 2020

Jonathan Hafetz (Brett Max Kaufman, Charles Hogle, Judy Rabinovitz, Celso Perez, for the American Civil Liberties Union Foundation, New York, NY; A. Nicole Hallett, Supervising Attorney; Jessica Lewis, Stephen Ferro, Rule 46.1(e) Law Students, for the Mandel Legal Aid Clinic, University of Chicago Law School, Chicago, IL; Jonathan Manes, for the Roderick & Solange MacArthur Justice Center, Chicago, IL, on the brief), for Petitioner-Appellee.

Anthony D. Bianco, Senior Counsel for National Security (Ethan P. Davis, Acting Assistant Attorney General; William C. Peachey, Director; Kathleen A. Connolly, Deputy Chief; Steven A. Platt, John J.W. Inkeles, Counsel for National Security, for the Office of Immigration Litigation, United States Department of Justice, Washington, DC; Daniel B. Moar, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, NY, on the brief), for Respondent-Appellant.

Before: Cabranes, Sullivan, and Menashi, Circuit Judges.

Menashi, Circuit Judge:

Adham Amin Hassoun was held in immigration detention at the Buffalo Federal Detention Facility (BFDF) from October 10, 2017, until July 21, 2020, pending his removal from the United States.¹ He is a stateless alien who was ordered removed in 2003 for violating the terms of his non-immigrant visa. From 2004 until 2017, he served a term of imprisonment for committing three terrorism-related offenses. After Hassoun was released from imprisonment, "he was again detained by immigration authorities on his original order of removal." Hassoun v. Sessions (Hassoun I) , No. 18-CV-586 (FPG), 2019 WL 78984, at *1 (W.D.N.Y. Jan. 2, 2019).

Because an alien typically must be removed within ninety days of a final order of removal or be released under supervision, 8 U.S.C. § 1231(a)(1), the government invoked several authorities to justify Hassoun's continued detention: 8 U.S.C. § 1231(a)(6), 8 C.F.R. § 241.14(d) (a regulation promulgated pursuant to § 1231(a)(6) ), and 8 U.S.C. § 1226a (the "Patriot Act"). Section 1231(a)(6) allows the government to detain an alien, such as Hassoun, who is inadmissible, removable, or "has been determined ... to be a risk to the community or unlikely to comply with [an] order of removal." On January 2, 2019, the U.S. District Court for the Western District of New York concluded that § 1231(a)(6) did not authorize Hassoun's continued detention on account of his deportable status for violating the terms of his non-immigrant visa because there was no significant likelihood that he would be removed in the reasonably foreseeable future. Hassoun I , 2019 WL 78984, at *3 (applying the framework of Zadvydas v. Davis , 533 U.S. 678, 701, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) ). The government did not appeal that decision.

The other two authorities, 8 C.F.R. § 241.14(d) and 8 U.S.C. § 1226a, allow the government to detain aliens who are inadmissible or removable for, or suspected of, terrorism or endangering the national security. On June 29, 2020, the district court held that neither 8 C.F.R. § 241.14(d) nor 8 U.S.C. § 1226a authorized the government's continued detention of Hassoun and ordered the government to release him. Hassoun v. Searls (Hassoun IV) , No. 19-CV-370 (EAW), 2020 WL 3496302, at *1 (W.D.N.Y. June 29, 2020). The government appealed the district court's 8 C.F.R. § 241.14(d) decision to this court and its 8 U.S.C. § 1226a decision to the U.S. Court of Appeals for the D.C. Circuit, as required by § 1226a(b)(3).

The government moved in both courts for a stay pending appeal to prevent Hassoun's immediate release. We granted the government's motion by an order issued July 16, 2020, which noted that an opinion would be forthcoming. We explain the reasons for that ruling, concluding that the government made a strong showing that it was likely to succeed on the merits and that it would suffer irreparable harm absent a stay.

BACKGROUND

Hassoun was born in Lebanon in 1962 to Palestinian refugee parents. He was admitted to the United States in 1989 on a nonimmigrant visa and was subsequently detained, placed in removal proceedings, and ordered removed for failing to comply with the conditions of his visa. Before he could be removed, Hassoun was taken into custody on federal criminal charges.

The government charged that between October 1993 and November 2001, Hassoun participated in a conspiracy to murder, kidnap, and maim persons overseas; conspired to provide material support to terrorists; and provided material support to terrorists. At trial, "the government presented evidence that [Hassoun and his codefendants] formed a support cell linked to radical Islamists worldwide and conspired to send money, recruits, and equipment overseas to groups that [they] knew used violence in their efforts to establish Islamic states." United States v. Jayyousi , 657 F.3d 1085, 1104 (11th Cir. 2011). A jury in the Southern District of Florida found Hassoun guilty on all three counts and the district court sentenced him to 188 months in prison. "[I]n finding [Hassoun] guilty, the jury rejected [his defense] that [he was] only providing nonviolent aid to Muslim communities." Id . at 1115.

After Hassoun completed his criminal sentence in October 2017, he was transferred to immigration detention under 8 U.S.C. § 1231(a)(6), which allows for the continued detention of an alien subject to a final order of removal who is inadmissible, removable for certain reasons, or is "a risk to the community or unlikely to comply with the order of removal." Subsequently, he was detained at the BFDF in the custody of the Department of Homeland Security (DHS). DHS made requests to Lebanon, the Palestinian Territories, Egypt, Iraq, Somalia, Sweden, and the United Arab Emirates but had not at the time of the government's motion been able to obtain travel documents to remove Hassoun.

In May 2018, Hassoun filed a petition for a writ of habeas corpus, challenging his continued detention under 8 U.S.C. § 1231(a)(6). On January 2, 2019, the district court concluded that Hassoun's "continued detention [was] ... no longer authorized under § 1231(a)(6)" because it could not "conclude that there [was] a significant likelihood of [Hassoun's] removal in the reasonably foreseeable future." Hassoun I , 2019 WL 78984, at *6. The district court delayed Hassoun's release, in part, to allow "immigration authorities ... to determine whether [he] may be detained on some basis other than his compliance with his nonimmigrant status." Id . at *7.

On February 22, 2019, DHS notified Hassoun of its intent to continue his detention pursuant to 8 C.F.R. § 241.14(d). That regulation permits the detention of an alien who is inadmissible or removable for, or suspected of, among other things, terrorist activities, whose "release presents a significant threat to the national security or a significant risk of terrorism," and for whom "[n]o conditions of release can reasonably be expected to avoid the threat to the national security or the risk of terrorism." Other provisions of the same regulation also permit the detention of "[a]liens with a highly contagious disease that is a threat to public safety," "[a]liens detained on account of serious adverse foreign policy consequences of release," and aliens whose release would "pose a special danger to the public." 8 C.F.R. § 241.14(b) - (c), (f).

DHS based its invocation of 8 C.F.R. § 241.14(d) on Hassoun's "role in a conspiracy recruiting fighters and providing material support to terrorist groups overseas engaging in ‘jihads’ in Chechnya, Bosnia, Kosovo, Algeria, Afghanistan, Pakistan, Somalia, Eritrea, and Libya." Notice of Intent & Factual Basis to Continue Detention, Am. Verified Pet., Ex. D, Hassoun IV , 2020 WL 3496302, (No. 19-CV-370), ECF No. 13-4. On March 15, 2019, Hassoun filed a new petition for a writ of habeas corpus, challenging his detention under 8 C.F.R. § 241.14(d).

Five months later, the government certified Hassoun for continued detention under 8 C.F.R. § 241.14(d) but also, for the first time, asserted authority to detain him under 8 U.S.C. § 1226a as well. Section 1226a is a provision of the Patriot Act that permits the government to detain an alien whom the Attorney General has reasonable grounds to believe "is engaged in ... activity that endangers the national security" or is removable or deportable for terrorist activities. After the government invoked § 1226a, the parties filed supplemental memoranda addressing the legality and application of that section to Hassoun.

On December 13, 2019, the district court held that " 8 C.F.R. § 241.14(d) is not a permissible reading of § 1231(a)(6)" and that it "does not provide procedural due process." Hassoun v. Searls (Hassoun II) , 427 F. Supp. 3d 357, 370, 372 (W.D.N.Y. 2019). Accordingly, the district court ruled that 8 C.F.R. § 241.14(d) is "a legal nullity that cannot authorize the ongoing, potentially indefinite detention of [Hassoun]." Id . at 372. On June 29, the district court issued another opinion holding that § 1226a also did not authorize Hassoun's continued detention, ordered his release, and denied the government's motion to stay Hassoun's release pending appeal. Hassoun IV , 2020 WL 3496302, at *1. The government timely appealed the district court's decisions to this court and to the D.C. Circuit.

DISCUSSION

In its motion, the government argues that Hassoun's release will "threaten the national security of the United States and the safety of the community." Gov't Mot. 4. This court has discretion to stay Hassoun's release, pending appeal, after considering "(1) whether [the...