Arar v. Ashcroft

Decision Date16 February 2006
Docket NumberNo. CV-044249 DGT VVP.,CV-044249 DGT VVP.
Citation414 F.Supp.2d 250
PartiesMaher ARAR, Plaintiff, v. John ASHCROFT, formerly Attorney General of the United States; Larry D. Thompson, formerly Acting Deputy Attorney General; Tom Ridge, formerly Secretary for Homeland Security; James W. Ziglar, formerly Commissioner for Immigration and Naturalization Services; J. Scott Blackman, formerly Regional Director of the Eastern Regional Office of the Immigration and Naturalization Service; Paula Corrigan, Regional Director of Immigration and Customs Enforcement; Edward J. McElroy, formerly District Director of Immigration and Naturalization Services for New York District and now District Director of Immigration and Customs Enforcement; Robert Mueller, Director of the Federal Bureau of Investigation; and John Does 1-10, Federal Bureau of Investigation and/or Immigration and Naturalization Service Agents, Defendants.
CourtU.S. District Court — Eastern District of New York

Barbara J. Olshansky, Maria C. Lahood, Center for Constitutional Rights, Joshua Samuel Sohn, Robert F. Fink, Sarah Jayne Sterken, DLA Piper Rudnick Gray Cary US LLP, Zazy Ivonne Lopez, Piper Rudnick, New York, NY, for Plaintiff.

Larry L. Gregg, Office of the U.S. Attorney, Alexandria, VA, Scott Dunn, United States Attorneys Office, Brooklyn, NY, Jeremy S. Brumbelow, Mary Hampton Mason, U.S. Justice Department, Jamie S. Kilberg Jeffrey A. Lamken, John J. Cassidy, Stephen L. Braga, Baker Botts LLP, Debra L. Roth, Thomas M. Sullivan, Shaw, Bransford, Veilleux & Roth, PC, Washington, DC, Ira H. Raphaelson, James A. Walden, O'Melveny & Myers LLP, New York, NY, Bassel Bakhos, William Alden McDaniel, Jr., Law Offices of William Alden McDaniel, Jr., Baltimore, MD, for Defendants.

MEMORANDUM AND ORDER

TRAGER, District Judge.

Plaintiff Maher Arar brings this action against defendants, U.S. officials, who allegedly held him virtually incommunicado for thirteen days at the U.S. border and then ordered his removal to Syria for the express purpose of detention and interrogation under torture by Syrian officials. He brings claims under the Torture Victim Prevention Act and the Fifth Amendment to the U.S. Constitution.

Defendants have filed motions to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The questions presented by these motions are whether the facts alleged can give rise to any theory of liability under those provisions of law and, if so, whether those claims can survive on prudential grounds in light of the national-security and foreign policy issues involved.

Background

All statements contained in parts (1) through (4) in this background section of the opinion are taken from the complaint, attached exhibits, or documents referred to in the complaint and are presumed true for the limited purposes of these motions to dismiss. The alleged facts will be presented as they have been pled and will be borrowed liberally from the complaint.

(1)

Plaintiff Maher Arar ("Arar" or "plaintiff") is a 33-year-old native of Syria who immigrated to Canada with his family when he was a teenager. He is a dual citizen of Syria and Canada and presently resides in Ottawa. In September 2002, while vacationing with family in Tunisia, he was called back to work by his employer to consult with a prospective client. He purchased a return ticket to Montreal with stops in Zurich and New York and left Tunisia on September 25, 2002.

On September 26, 2002, Arar arrived from Switzerland at John F. Kennedy Airport ("JFK Airport") in New York to catch a connecting flight to Montreal. Upon presenting his passport to an immigration inspector, he was identified as "the subject of a ... lookout as being a member of a known terrorist organization." Complaint ("Cplt.") Ex. D (Decision of J. Scott Blackman, Regional Director) at 2. He was interrogated by various officials for approximately eight hours. The officials asked Arar if he had contacts with terrorist groups, which he categorically denied. Arar was then transported to another site at JFK Airport, where he was placed in solitary confinement. He alleges that he was transported in chains and shackles and was left in a room with no bed and with lights on throughout the night.

The following morning, September 27, 2002, starting at approximately 9:00 a.m., two FBI agents interrogated Arar for about five hours, asking him questions about Osama bin Laden, Iraq and Palestine. Arar alleges that the agents yelled and swore at him throughout the interrogation. They ignored his repeated requests to make a telephone call and see a lawyer. At 2:00 p.m. that day, Arar was taken back to his cell, chained and shackled and provided a cold McDonald's meal — his first food in nearly two days.

That evening, Arar was given an opportunity to voluntarily return to Syria, but refused, citing a fear of being tortured if returned there and insisting that he be sent to Canada or returned to Switzerland. An immigration officer told Arar that the United States had a "special interest" in his case and then asked him to sign a form, the contents of which he was not allowed to read. That evening, Arar was transferred, in chains and shackles, to the Metropolitan Detention Center ("MDC") in Brooklyn, New York, where he was strip-searched and placed in solitary confinement. During his initial three days at MDC, Arar's continued requests to meet with a lawyer and make telephone calls were refused.

On October 1, 2002, the Immigration and Naturalization Service ("INS") initiated removal proceedings against Arar, who was charged with being temporarily inadmissible because of his membership in al Qaeda, a group designated by the Secretary of State as a foreign terrorist organization. Upon being given permission to make one telephone call, Arar called his mother-in-law in Ottawa, Canada.

Upon learning Arar's whereabouts, his family contacted the Office for Consular Affairs ("Canadian Consulate") and retained an attorney, Amal Oummih, to represent him. The Canadian Consulate had not been notified of Arar's detention. On October 3, 2002, Arar received a visit from Maureen Girvan from the Canadian Consulate, who, when presented with the document noting Arar's inadmissibility within the U.S., assured Arar that removal to Syria was not an option. On October 4, 2002, Arar designated Canada as the country to which he wished to be removed.

On October 5, 2002, Arar had his only meeting with counsel. The following day, he was taken in chains and shackles to a room where approximately seven INS officials questioned him about his reasons for opposing removal to Syria. His attorney was not provided advance notice of the interrogation, and Arar further alleges that U.S. officials misled him into thinking his attorney had chosen not to attend. During the interrogation, Arar continued to express his fear of being tortured if returned to Syria. At the conclusion of the six-hour interrogation, Arar was informed that the officials were discussing his case with "Washington, D.C." Arar was asked to sign a document that appeared to be a transcript. He refused to sign the form.

The following day (October 7, 2002), attorney Oummih received two telephone calls informing her that Arar had been taken for processing to an INS office at Varick Street in Manhattan, that he would eventually be placed in a detention facility in New Jersey and that she should call back the following morning for Arar's exact whereabouts. However, Arar alleges that he never left MDC and that the contents of both of these phone calls to his counsel were false and misleading.

That same day, October 7, 2002, the INS Regional Director, J. Scott Blackman, determined from classified and unclassified information that Arar is "clearly and unequivocally" a member of al Qaeda and, therefore, "clearly and unequivocally inadmissible to the United States" under 8 U.S.C. § 1182(a)(3)(B)(i)(V). See Cplt. Ex. D. at 1, 3, 5. Based on that finding, Blackman concluded "that there are reasonable grounds to believe that [Arar] is a danger to the security of the United States." Id. at 6.

At approximately 4:00 a.m. on October 8, 2002, Arar learned that, based on classified information, INS regional director Blackman had ordered that Arar be sent to Syria and that his removal there was consistent with Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ("CAT"). Arar pleaded for reconsideration but was told by INS officials that the agency was not governed by the "Geneva Conventions" and that Arar was barred from reentering the country for a period of five years and would be admissible only with the permission of the Attorney General.

Later that day, Arar was taken in chains and shackles to a New Jersey airfield, where he boarded a small jet bound for Washington, D.C. From there, he was flown to Amman, Jordan, arriving there on October 9, 2002. He was then handed over to Jordanian authorities, who delivered him to the Syrians later that day. At this time, U.S. officials had not informed either Canadian Consulate official Girvan or attorney Oummih that Arar had been removed to Syria. Arar alleges that Syrian officials refused to accept Arar directly from the United States.

Arar's Final Notice of Inadmissability ("Final Notice") ordered him removed without further inquiry before an immigration judge. See Cplt. Ex. D. According to the Final Notice: "The Commissioner of the Immigration and Naturalization Service has determined that your removal to Syria would be consistent with [CAT]." Id. It was dated October 8, 2002, and signed by Deputy Attorney General Larry Thompson. After oral argument on these motions to dismiss, in a letter dated August 18, 2005, counsel for Arar clarified that he received the Final Notice within hours of boarding the aircraft taking him to Jordan. See Dkt. No. 93.

(2)

During his ten-month period of...

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12 cases
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