Haddam v. Reno
| Decision Date | 28 April 1999 |
| Docket Number | No. Civ.A.98-1579-A.,Civ.A.98-1579-A. |
| Citation | 54 F.Supp.2d 588 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Anwar HADDAM, Petitioner, v. Janet RENO, Attorney General, et al., Respondents. |
Malea Kiblan, Kiblan & Battles, McLean, VA, Susan Akram, Boston, MA, University Civil Litigation Program, Boston, MA, for Petitioner.
Dennis Michael Kennedy, U.S. Attorneys Office, Alexandria, VA, Joyce A.N. Massey, McCarthy & Massey, P.C., Manassas, VA, John M. McAdams, Jr., Office of Immigration Litigation, Civil Div., U.S. Dept of Justice, Washington, DC, for Respondents.
This petition for a writ of habeas corpus presents a threshold jurisdictional question, not yet resolved in this circuit, namely:
Whether the 1996 amendments to the Immigration and Nationality Act (INA)1 allow an excludable alien in the midst of an ongoing exclusion proceeding to obtain district court review of i) the INS's decision to incarcerate the alien indefinitely and deny release on any conditions and ii) the INS's ex parte use of secret evidence against the alien in the exclusion proceedings.
For the reasons set forth here, review of petitioner's claims regarding the INS's use of ex parte secret evidence must be sought in the court of appeals after the issuance of a final order in the administrative process, but under IIRIRA's transitional regime, habeas corpus jurisdiction exists in district court to review petitioner's detention-related claims.
Petitioner Anwar Haddam is a native and citizen of Algeria. He was admitted to the United States as a graduate student in 1980, and then returned to Algeria in 1984. In 1991, he was democratically elected to the Algerian parliament as a member of the Islamic Salvation Front (FIS). In 1992, the elections were nullified by a military coup, following which Haddam fled Algeria and entered the United States on a visitor's visa on December 10, 1992. He currently serves as the chief of the FIS Parliamentary Delegation in Exile.
On April 9, 1993,2 Haddam applied for political asylum and withholding of deportation pursuant to §§ 208(a) and 243(h)(1) of the INA.3 Following this, he applied for and received advance parole from the INS on several occasions, which allowed him to travel abroad to conduct his activities as FIS's chief and its media spokesperson.4 The latest parole grant was to be valid through February 16, 1997. In May 1996, the INS Chicago Asylum Office notified Haddam that it intended to deny his asylum application, and Haddam filed a prompt response. In October 1996, the Chicago Asylum Office denied his asylum application, and on December 5, 1996, the INS district director revoked Haddam's parole status. On December 6, 1996, Haddam was placed in detention, and, at the same time, served with notice that his parole status had been revoked.
Haddam has remained incarcerated continuously since December 1996, a period now exceeding two years.5 During this period, the INS district director has rejected Haddam's several requests for release. The requests were rejected notwithstanding Haddam's willingness to accede to, and pay for, various release conditions, including house arrest and electronic monitoring. In response to his requests, the district director has issued two letters indicating i) that petitioner is a flight risk because he traveled to countries other than those for which advance parole was requested,6 ii) that Haddam is not in any of the specific categories of persons whose detention, in general, is not in the public interest, iii) that Haddam had not met his burden of proof of establishing that his detention is not in the public interest under the factors, such as family members able to confer immigration benefits on the petitioner or petitioner's contributions to United States society, that must be considered for aliens who do not fall into one of the specified categories of aliens whose detention is generally not in the public interest, and iv) that Haddam has not held a job or paid any taxes in the United States, despite his extensive travel throughout the world since 1992. In the second letter, the director also noted that INTERPOL has indicated that three international warrants for Haddam's arrest in connection with alleged violent activity exist.7
The INS commenced exclusion proceedings against Haddam on December 10, 1996, four days after his incarceration.8 These proceedings, which are still ongoing, have progressed at something less than breakneck speed. The Immigration Judge (IJ) originally scheduled the master calendar hearing in Haddam's exclusion proceeding for December 13, 1996. This hearing was continued at the request of both parties on various motions to allow settlement negotiations to continue. No settlement was reached, and a pretrial conference in the exclusion proceeding was held on March 21, 1997, at which time the government, for its part, stipulated that Haddam has a well-founded fear of persecution in Algeria and Haddam, for his part, conceded that he is excludable. After the denial of an interlocutory appeal regarding the ex parte use of secret evidence against Haddam, the IJ issued a decision and order on July 14, 1997, holding i) that he would not consider the secret evidence ex parte, in camera, as this would be fundamentally unfair, where, as here, the government would not provide Haddam with a summary of the evidence,9 ii) that Haddam faced a well-founded fear of persecution if he returned to Algeria — indeed that there was a clear probability he would be tortured and killed if he returned — and therefore that Haddam was eligible for asylum and withholding, iii) that Haddam was a persecutor of others, and therefore that the IJ was required by statute to deny Haddam's request for asylum and withholding of deportation, and iv) that Haddam was to be excluded and deported, but not to Algeria because returning Haddam would violate the not yet implemented UN Convention Against Torture. Both sides appealed the order to the Board of Immigration Appeals (BIA).
On September 10, 1998, almost a year and a half later, the BIA issued a decision on the appeal, concluding i) that the IJ was statutorily required to review the secret evidence ex parte and in camera to determine its relevancy and could exclude such evidence only if irrelevant,10 ii) that there was no admissible evidence in the current record that Haddam participated in, directed, or incited the persecution of others, and iii) that the IJ had no power to act under the UN Convention Against Torture until the Convention was implemented. The BIA remanded the case for expeditious review of the classified secret evidence. On remand, the IJ expressed his view on the record that the use of the secret evidence was fundamentally unfair, and for this reason recused himself. On November 13, 1998, a newly-appointed IJ received the secret evidence.11 A week later this IJ held another hearing at which Haddam and his daughter testified. The IJ then heard further secret evidence on December 17, 1998, and thereafter apparently closed the proceeding. No ruling or final order has yet issued.
On January 13, 1997, just over a month after his exclusion proceeding began, Haddam filed here his first petition for writ of habeas corpus. That petition was denied at a hearing on January 17, 1997.12 Almost two years later, long after the BIA issued its decision on Haddam's petition, but before the second IJ heard the secret evidence, on October 29, 1998, the instant petition for habeas corpus relief was filed. In this second petition, Haddam again seeks a writ of habeas corpus, as well as temporary and permanent injunctions prohibiting his continued incarceration and barring his deportation until the merits of this petition and the exclusion proceeding have been resolved, including any appeals.13 According to the petition, which consists of fourteen counts, this relief is warranted given (i) the revocation of advance parole, (ii) the denial of bond and release, (iii) the conduct of the exclusion hearings, particularly the ex parte use of secret evidence, and (iv) petitioner's transfer to a Virginia Beach facility while awaiting further administrative action.14 In late December, this Court heard initial argument on the jurisdictional issues raised by the instant petition, but deferred ruling to allow additional briefing on decisions announced immediately prior to the hearing. Since that hearing, the parties have been attempting, without success, to resolve this matter by locating a mutually satisfactory country to accept Haddam.15
Judicial review of immigration decisions is generally governed by the INA. In 1996, two statutes amending the INA, namely, AEDPA16 and IIRIRA,17 significantly restricted the availability of judicial review of immigration decisions issued under the INA, ostensibly to expedite the removal of illegal aliens.18 It is the impact of these provisions that is at issue here, as the government contends that this Court's jurisdiction over Haddam's petition, even under 28 U.S.C. § 2241, has been removed by the enactment in IIRIRA of a new provision, § 242(g) of the INA, codified at 8 U.S.C. § 1252(g).
Analysis properly begins with a review of the applicable law. In this regard, a brief review of the procedures for judicial review of immigration decisions prior to the 1996 amendments sets the stage for analysis of the effect of the 1996 amendments. In the pre-1996 regime, separate proceedings existed for review of exclusion and deportation orders,19 although exhaustion of administrative remedies was required for both.20 Aliens in exclusion proceedings, such as Haddam, were limited to habeas corpus review in the district court, as set forth in the former INA § 106(b).21 Aliens in deportation proceedings were subject to the provisions of former INA § 106(a), under which these aliens could seek review of final orders only in the court of appeals.22...
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Haddam v. Reno
...on Anwar Haddam's petition for writ of habeas corpus. By Order dated April 27, 1999, and for the reasons set forth in Haddam v. Reno, 54 F.Supp.2d 588 (E.D.Va.1999), ten of the petition's fourteen counts were dismissed for lack of jurisdiction or as moot. At issue now are the four counts — ......