Chehazeh v. Attorney Gen. of the United States, No. 10–2995.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: JORDAN
• Citation: 666 F.3d 118
• Parties: Daoud CHEHAZEH, Appellant, v. ATTORNEY GENERAL OF the UNITED STATES, Secretary of the Department of Homeland Security.
• Decision Date: 11 January 2012
• Docket Number: No. 10–2995.

666 F.3d 118

Daoud CHEHAZEH, Appellant,
v.
ATTORNEY GENERAL OF the UNITED STATES, Secretary of the Department of Homeland Security.

No. 10–2995.

United States Court of Appeals, Third Circuit.

Argued June 21, 2011.Filed: Jan. 11, 2012.

[666 F.3d 121]

Lindsee P. Granfield, Jeffrey M. Rosenthal, Ashika Singh, Alida Lasker, Jane Pek, Nathaniel Jedrey, Cleary, Gottlieb, Steen & Hamilton, Lavi S. Soloway, Tanisha L. Massie [Argued], Masliah & Soloway, PC, New York, NY, for Appellant.

Tony West, David J. Kline, Theodore W. Atkinson, Leah A. Bynon, Erez Reuveni [Argued], United States Department of Justice, Office of Immigration Litigation, District Court Section, Washington, DC, for Appellees.

Before: CHAGARES, JORDAN, and GREENAWAY, JR., Circuit Judges.OPINION OF THE COURT JORDAN, Circuit Judge.

Daoud Chehazeh appeals the May 24, 2010 order of the United States District Court for the District of New Jersey dismissing, for lack of jurisdiction, his “Petition for Writ of Habeas Corpus and Stay of Removal Proceedings.” ¹ Chehazeh had asked the District Court to declare that the decision of the Board of Immigration Appeals (the “BIA”) to sua sponte reopen removal proceedings against him is contrary to law, and he sought an order requiring the BIA to terminate the reopened proceedings. Because we conclude that, under these unusual circumstances, the District Court has jurisdiction to review the BIA's decision pursuant to 28 U.S.C. § 1331 and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., we will reverse the District Court's order and remand for further proceedings.

I. BackgroundA. Factual History²

Chehazeh is a Syrian native and citizen who, prior to 1999, lived in Damascus and worked as a travel agent. As part of his business, Chehazeh helped his customers to obtain Saudi Arabian work visas through his contacts in the Saudi Arabian embassy. In 1999, one of those contacts allegedly defrauded Chehazeh of 7 million Syrian lire that Chehazeh had paid to obtain visas. Chehazeh was left indebted to his customers and so borrowed 3.5 million lire from several moneylenders to help meet those debts. Soon afterwards, he travelled to Saudi Arabia to confront the person he believed had defrauded him. After failing in that attempt, he came to the United States rather than returning to Syria. He was admitted to this country on July 3, 2000, on a non-immigrant visa that authorized him to stay here until January 2, 2001. His family in Syria subsequently informed him that his creditors were pursuing legal action against him and had put a lien on his house. Chehazeh claims he was afraid that if he returned to Syria, he would be put in jail, and so he stayed in

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the United States after the expiration of his visa.

Chehazeh settled in Northern Virginia and began attending the Dar al Hijra mosque in Falls Church. Through that affiliation, he became acquainted with two Saudi men named Hanji Hanjour and Nawaf al-Hazmi, who told him that they were in the United States studying to become pilots. On at least one occasion, Hanjour and al-Hazmi visited Chehazeh in his apartment. On September 25, 2001, while watching news coverage of the September 11, 2001 attacks, Chehazeh recognized pictures of Hanjour and al-Hazmi and heard that they were two of the individuals suspected of perpetrating the attacks. Chehazeh “felt compelled to tell the U.S. authorities everything [he] knew about Hanjour and Hamzi [sic].” (App. at 41.) As a result, he made several attempts to contact the FBI, but his efforts were impeded by his inability to speak English. Finally, on September 28, 2001, he was able to communicate with someone at the FBI and, during an interview that day, provided FBI agents with the information he had regarding Hanjour and al-Hazmi. The FBI brought him in for additional questioning on October 1, 2001, after which—no doubt to his distress—he was detained and placed in the custody of the Immigration and Naturalization Service (“INS”).

B. Procedural History1. The IJ Decision and the Dismissal of the INS's Appeal

On October 19, 2001, the INS issued a Notice to Appear charging Chehazeh with being a removable alien. He did not dispute his removability but submitted an application for asylum and sought withholding of removal and relief under the Convention Against Torture (“CAT”). Prior to a merits hearing on his application, Chehazeh was transferred back to FBI custody on a material witness warrant. Although the timing is unclear, it appears that Chehazeh bounced between INS and FBI custody from November 2001 until the date of the eventual hearing on his asylum application on May 24, 2002.³

During that hearing, the Immigration Judge (“IJ”) granted Chehazeh's application for asylum pursuant to 8 U.S.C. § 1158, withholding of removal pursuant to 8 U.S.C. § 1231(b)(3)(A), and withholding of removal pursuant to the CAT. In so doing, the IJ first found that, although Chehazeh's application for asylum had not been filed within a year of his entering the country as required by § 1158(a)(2)(B), his application was still timely because it was motivated by “events that ha[d] happened to [him] since the time that [he was] arrested,” namely, that he had “developed a new fear ... after people realized that [he was] giving information to the FBI.” ⁴ (App. at 47–48.)

Next, the IJ found Chehazeh to be credible and “an exceptional, honest person,” explaining that he had been “arrested only because [he] asked the FBI to please accept information that [he] felt that [he] had that related to terrorists who destroyed the World Trade Center.” (App. at 48.) The IJ also noted that “the FBI ha[d] carefully examined [his] case and [he was deemed] no longer to be of special interest.... That mean[t] that what [he'd] said

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all along [was] true and that [he was] not a danger to the United States and that [he was] not involved in any kind of terrorist activities.” (App. at 49.)

The IJ then concluded that Chehazeh was a member of a social group comprising hopeless debtors who, the IJ determined, faced a denial of fundamental rights, including the lack of a fair trial and severe prison conditions in Syria. The IJ found that, due to Chehazeh's membership in that group, there was a “clear likelihood of persecution in Syria should [he] be returned there” and that “[t]he physical abuse that would be lodged against [him] is specifically described by the State Department as torture.” (App. at 60–61.) As a result, the IJ granted his applications for asylum and for withholding of removal.

The INS appealed to the BIA, claiming that the IJ erred by considering Chehazeh's asylum application to be timely, by finding that he was a member of a social group comprising hopeless debtors, and by finding that he would be unable to obtain a fair trial in Syria. The INS also claimed that the IJ “should have recused herself due to her inability to be fair and impartial.” (App. at 311.) With respect to the IJ's alleged bias, the INS stated:

[The IJ's] behavior in this matter ... included but is not limited to ordering the Service ... to personally travel to Respondent's place of detention to assist him in preparing his I–589 [application for asylum and withholding of removal]. When the Service declined, the [I]mmigration Judge advised that she would assume Respondent had a meritorious claim and grant him asylum. Ultimately, the Immigration Judge personally reviewed and completed Respondent's I–589. At the time of the individual hearing prior to obtaining any testimony from Respondent, the Immigration Judge advised that she was ready to render a decision.

( Id.)

Despite filing an appeal, the INS never submitted any briefing and, consequently, the BIA dismissed the appeal on August 20, 2004. The IJ's order thus became the final outcome of the agency proceedings, or so it appeared.

2. The Reopening of Chehazeh's Removal Proceedings

Nearly three years later, on August 9, 2007, the Bureau of Immigration and Customs Enforcement (“ICE”), which had succeeded to the responsibilities of the INS,⁵ moved to reopen Chehazeh's removal proceedings and to terminate his asylum. ICE said that the proceedings should be reopened for two reasons. First, it alleged that “there [was] a showing of fraud in [Chehazeh's] application.” (App. at 115.) Specifically, ICE stated that Chehazeh's claim to be wanted by police in Syria was shown to be fraudulent by a later check with Interpol revealing that he was not wanted by any authority. Second, ICE asserted that “there [were] reasonable grounds for regarding [Chehazeh] as a danger to the security of the United States,” due to his interactions with Hanjour and al-Hazmi and due to his having obtained a fraudulent driver's license. (App. at 116–17.) ICE also reported that “the FBI is unable to rule out the possibility that [Chehazeh] poses a threat to the security of the United States.” (App. at 117.) ICE thus argued that the proceedings should be reopened and Chehazeh's asylum terminated.

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In response, Chehazeh argued that ICE's motion should be denied both because it was not based on any new evidence and because it was wrong on its merits. Regarding the purported fraud, Chehazeh pointed out that the report from Interpol was from 2003, prior to the dismissal of the INS's earlier appeal, and, therefore, it was not new. He also said that his statement that his family told him the Syrian authorities were looking for him was not shown to be fraudulent simply because an Interpol search showed no warrants. ⁶ Regarding his alleged threat to national security, Chehazeh noted that ICE “merely restate[d] the very facts known by law enforcement in 2001 and considered by the IJ,” after which the IJ had concluded that Chehazeh was “not a danger to the United States.” (App. at 108.) Chehazeh argued that “[i]t is both unfair and unnecessary to reopen [his] case, which was finally determined by this Board over three years ago, based on...