Hassoun v. Searls
| Decision Date | 24 January 2020 |
| Docket Number | 1:19-CV-00370 EAW |
| Parties | ADHAM AMIN HASSOUN, Petitioner, v. JEFFREY SEARLS, in his official capacity as Acting Assistant Field Office Director and Administrator of the Buffalo Federal Detention Facility, Respondent. |
| Court | U.S. District Court — Western District of New York |
Petitioner Adham Amin Hassoun ("Petitioner") is a civil immigration detainee currently housed at the Buffalo Federal Detention Facility (the "BFDF") in Batavia, New York. Respondent Jeffrey Searls ("Respondent") is administrator of the BFDF. Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and 8 U.S.C. § 1226a(b), arguing that his current detention is unauthorized by lawful statute or regulation and that he must be released, with appropriate conditions of supervision. Respondent contends that Petitioner is lawfully detained pursuant to both 8 U.S.C. § 1226a(a) and 8 C.F.R. § 241.14(d).
On December 13, 2019, the Court entered a Decision and Order (Dkt. 55) finding that Petitioner's continued detention is not lawfully authorized by 8 C.F.R. § 241.14(d) and that an evidentiary hearing is necessary before the Court can determine the lawfulness of Petitioner's continued detention pursuant to 8 U.S.C. § 1226a. The instant Decision and Order addresses the parameters of the forthcoming evidentiary hearing, which has been scheduled to commence on April 28, 2020. (Dkt. 71).
The legal and factual background of this action are set forth in detail in the Court's Decision and Order of December 13, 2019 (Dkt. 55), familiarity with which is assumed for purposes of the instant Decision and Order. The Court summarizes the relevant procedural developments below.
Following the Court's determination that an evidentiary hearing is required in this matter, a status conference was held on December 20, 2019. (Dkt. 55; Dkt. 57). At the status conference, the Court and the parties discussed the parameters of the evidentiary hearing, and the Court ordered briefing thereon, including but not limited to the applicable burden and standard of proof. (Dkt. 58).
On January 6, 2020, the parties filed briefs regarding the parameters of the evidentiary hearing. (Dkt. 60; Dkt. 61). The parties filed responsive briefs on January 13, 2020. (Dkt. 63; Dkt. 67).1
A further status conference was held on January 17, 2020. (Dkt. 58; Dkt. 70). At that status conference, the Court announced that it had reached the following conclusions: (1) at the evidentiary hearing, Respondent will bear the burden of demonstrating by clearand convincing evidence that the factual predicate for continued detention under 8 U.S.C. § 1226a(a)(6) is met in this case; (2) Petitioner must bear the burden of demonstrating that the identity of the confidential informants in this case should be revealed; (3) hearsay evidence will be admissible at the evidentiary hearing if the party seeking to introduce such evidence can demonstrate that such evidence is reliable and that it would be unduly burdensome to submit non-hearsay evidence; and (4) the evidentiary hearing will be held at the federal courthouse in Buffalo, New York. The Court further explained that the scope of the evidentiary hearing would be solely whether there was a factual basis for Petitioner's continued detention under 8 U.S.C. § 1226a(a)(6) and not whether there was a factual basis for the initial certification of Petitioner under 8 U.S.C. § 1226a(a)(3). The Court informed the parties that a written decision memorializing these conclusions and the reasons therefor would be forthcoming. This Decision and Order fulfills that purpose.
As a threshold matter, the Court clarifies the scope of the evidentiary hearing it has ordered. Assuming that § 1226a is constitutional, Petitioner's continued detention thereunder is warranted only if: (1) there are "reasonable grounds to be believe" that Petitioner "is described in section 1182(a)(3)(A)(i), 1182(a)(3)(A)(iii), 1182(a)(3)(B), 1227(a)(4)(A)(i), 1227(a)(4)(A)(iii), or 1227(a)(4)(B) of [8 U.S.C.]" or "is engaged in any other activity that endangers the national security of the United States," 8 U.S.C. § 1226a(a)(3); and (2) Petitioner's release would "threaten the national security of the United States or the safety of the community or any person," id. § 1226a(a)(6).
At the status conference held on December 20, 2019, Respondent inquired as to whether the evidentiary hearing would be addressed to the factual determination under § 1226a(a)(3) or (a)(6). (See Dkt. 68 at 24). Petitioner's counsel stated that it was Petitioner's position that the evidentiary hearing would be "limited to (a)(6)." (Id.). However, in his brief regarding the parameters of the evidentiary hearing, Petitioner stated that Respondent "bears the burden of proving both that [Petitioner] was properly certified under (a)(3) and that his continued indefinite detention is justified under (a)(6)," but that "[c]ounsel expects the evidentiary hearing to focus on" the § 1226a(a)(6) determination. (Dkt. 60 at 9-10 & n.3 (emphases omitted)). Respondent has asked the Court to "clearly identify on the written record which provision of . . . § 1226a is the subject of the evidentiary hearing." (Dkt. 63 at 18).
The Court ordered an evidentiary hearing in this case because it is not clear, on the current record, whether the factual predicate for continued detention under § 1226a(a)(6) is satisfied. With respect to the factual determination required by § 1226a(a)(3), there does not appear to the Court to be any additional development of the record required. In particular, § 1226a(a)(3) includes within its purview aliens described in 8 U.S.C. § 1182(a)(3)(B). In turn, 8 U.S.C. § 1182(a)(3)(B)(i)(I) provides that "[a]ny alien who has engaged in a terrorist activity . . . is inadmissible." "Engaged in terrorist activity" is defined to include "commit[ing] an act that the actor knows, or reasonably should know, affords material support . . . to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity" or "to a terrorist organization . . . or to any member of such an organization. . . ." Id. § 1182(a)(3)(B)(iv)(VI)(bb), (cc), and(dd). As the Court noted in its earlier Decision and Order, Petitioner was criminally convicted of "conspiracy to provide material support for terrorism" and "providing material support to terrorists." (Dkt. 55 at 4).
Petitioner has not identified any factual disputes regarding whether he is an alien described by 8 U.S.C. § 1182(a)(3)(B), which is sufficient to satisfy the factual requirements of § 1226a(a)(3). Moreover, while Petitioner has made legal arguments regarding the propriety of the § 1226a(a)(3) certification, those legal arguments are not the reason an evidentiary hearing was ordered. The subject of the evidentiary hearing is whether the factual basis for continued potentially indefinite detention under § 1226a(a)(6) is satisfied—that is, whether Petitioner's release would threaten the national security of the United States or the safety of the community or any person. The evidence submitted by the parties should be addressed to that issue.
The Supreme Court "consistently has recognized that an individual challenging his detention may not be held at the will of the Executive without recourse to some proceeding before a neutral tribunal to determine whether the Executive's asserted justifications for that detention have basis in fact and warrant in law." Hamdi v. Rumsfeld, 542 U.S. 507, 528 (2004) (plurality opinion). However, the parameters of such proceedings may vary with the circumstances, because:
due process is flexible and calls for such procedural protections as the particular situation demands. Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.
Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (quotation and alteration omitted).
Having determined that an evidentiary hearing is required in this matter, the Court must decide which party will bear the burden of proof at said hearing, and what standard that party must meet to satisfy that burden.2 Petitioner argues it is well-established that in habeas proceedings involving civil detention, the government must bear the burden of proof. (Dkt. 60 at 8). Petitioner further contends that due process demands that the standard of proof be beyond a reasonable doubt. (See id. at 13-16). Respondent, unsurprisingly, disagrees, arguing that the burden is on Petitioner to prove "by a preponderance of the evidence that his detention is unlawful." (Dkt. 61 at 1). Respondent goes on to argue that "[s]hould the Court disagree that Petitioner bears the burden at the evidentiary hearing, the standard on the government should also be preponderance of the evidence." (Id. at 5).
As was confirmed at oral argument on November 22, 2019, this is the first time since its promulgation in 2001 that the government has ever invoked § 1226a to justify the ongoing, potentially indefinite detention of a detainee. (See Dkt. 56 at 51). Accordingly, no other court has ever considered the standards for the habeas review expressly anticipated by § 1226a(b), and the Court is writing on something of a blank state. However, there is a fairly robust body of law related to habeas corpus petitions brought by individualsapprehended in connection with the ongoing military conflicts in Afghanistan and Iraq and designated as "enemy combatants." While this is not a perfect analog for the situation before the Court, it is sufficiently similar to provide, at least, a starting place for the Court's analysis.
The Court finds the plurality opinion in Hamdi instructive. Hamdi was an American citizen whom the...
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