Hassoun v. Searls, 1:19-CV-00370 EAW

• Decision Date: 13 December 2019
• Docket Number: 1:19-CV-00370 EAW
• Citation: 427 F.Supp.3d 357
• 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

427 F.Supp.3d 357

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.

1:19-CV-00370 EAW

United States District Court, W.D. New York.

Signed December 13, 2019

A. Nicole Hallett, Jonathan Matthew Manes, University at Buffalo School of Law, Buffalo, NY, Brett Max Kaufman, Celso Javier Perez, American Civil Liberties Union Foundation, New York, NY, Christopher T. Dunn, Jonathan Hafetz, Judy Rabinovitz, Victoria Marie Roeck, New York Civil Liberties Union Foundation, New York, NY, for Petitioner.

Daniel Barrie Moar, U.S. Attorney's Office, Buffalo, NY, United States Attorney's Office (e-service), Western District of New York, Edward S. White, Steven A. Platt, Timothy M. Belsan, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Petitioner Adham Amin Hassoun ("Petitioner") is a civil immigration detainee currently housed at the Buffalo Federal Detention Facility in Batavia, New York. 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 Jeffrey Searls ("Respondent") contends that Petitioner is lawfully detained pursuant to both 8 U.S.C. § 1226a(a) and 8 C.F.R. § 241.14(d) and asks the Court to deny the Petition.

For the reasons that follow, the Court finds that Petitioner's continued detention is not lawfully authorized by 8 C.F.R. § 241.14(d). The Court further finds that additional development of the record is necessary regarding whether 8 U.S.C. § 1226a(a) lawfully authorizes Petitioner's ongoing detention, and accordingly orders an evidentiary hearing.

BACKGROUND

I. Legal Framework

"When an alien has been found to be unlawfully present in the United States and a final order of removal has been entered, the Government ordinarily secures the alien's removal during a subsequent 90-day statutory ‘removal period,’ during which time the alien normally is held in custody." Zadvydas v. Davis , 533 U.S. 678, 682, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). After expiration of the 90-day removal period, 8 U.S.C. § 1231(a)(6) allows the Government to continue to detain certain classes of aliens or to release them, subject to appropriate terms of supervision. Id.

In Zadvydas , the Supreme Court considered whether § 1231(a)(6) permits the Government "to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien's removal," and reached the latter conclusion. Id. ("Based on our conclusion that indefinite detention of aliens in the former category would raise serious constitutional concerns, we construe the statute to contain an implicit ‘reasonable time’ limitation, the application of which is subject to federal-court review."). Under Zadvydas , the presumptively reasonable time frame for post-removal detention is six months. Id. at 701, 121 S.Ct. 2491.

In October 2001, approximately four months after the Zadvydas decision and shortly after the terrorist attacks of September 11, 2001, Congress enacted the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. Law 107-56, 115 Stat. 272 (the "Patriot Act"). Among other things, the Patriot Act "enacted a statute [ 8 U.S.C. § 1226a ] which expressly authorize[s] continued detention, for a period of six months beyond the removal period (and renewable indefinitely), of any alien (1) whose removal is not reasonably foreseeable and (2) who presents a national security threat or has been involved in terrorist activities." Clark v. Martinez , 543 U.S. 371, 386 n.8, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005).

In November 2001, in response to the decision in Zadvydas , the Attorney General of the United States promulgated 8 C.F.R. § 241.14. See Continued Detention of Aliens Subject to Final Orders of Removal, 66 Fed. Reg 56967 (Nov. 14, 2001) ("This rule amends the custody review process governing the detention of aliens who are the subject of a final order of removal, deportation or exclusion, in light of the decision of the U.S. Supreme Court in Zadvydas v. Davis [533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) ]"). This regulation, among other things, authorizes detention beyond six months for "[a]liens detained on account of security or terrorism concerns." 8 C.F.R. § 241.14(d). In particular, where it is certified by the Attorney General that: (1) an alien "is a person described in section 212(a)(3)(A) or (B) or section 237(a)(4)(A) of (B) of the [Immigration and Nationalization] Act or the alien has engaged or will likely engage in any other activity that endangers the national security"; (2) "[t]he alien's release presents a significant threat to the national security or a significant risk of terrorism"; and (3) "[n]o conditions of release can reasonably be expected to avoid the threat to the national security or the risk of terrorism," then the regulation authorizes ongoing detention, "subject to ongoing review on a semi-annual basis." Id.

Both 8 U.S.C. § 1226a and 8 C.F.R. § 241.14(d) refer to certification by the Attorney General. However, the Homeland Security Act of 2002, Pub. L. 107–296, 116 Stat. 2135 (Nov. 25, 2002) abolished the Immigration and Naturalization Service (the "INS"), which was under the auspices of the Attorney General, and transferred the INS' "detention and removal program" to the Department of Homeland Security ("DHS"). Id. § 441. Accordingly, the Secretary of DHS is now responsible for certifications under 8 U.S.C. § 1226a and 8 C.F.R. § 241.14(d). See 6 U.S.C. §§ 251, 557.

II. Petitioner's Background and Criminal History

Petitioner is "a Palestinian who, while born in Lebanon, is not a citizen of Lebanon." Hassoun v. Sessions , No. 18-CV-586-FPG, 2019 WL 78984, at *1 (W.D.N.Y. Jan. 2, 2019). He was first admitted to the United States in 1989 as a non-immigrant visitor for pleasure, and his status was changed to that of a non-immigrant student in 1990. Id. "In 2002, after Petitioner failed to comply with the conditions of his student visa, immigration authorities detained him and instituted removal proceedings," and "Petitioner's order of removal became administratively final in 2003." Id.

However, before he could be removed, Petitioner was taken into custody in early 2004 on federal criminal charges. Id. Petitioner was ultimately convicted on three charges: "(1) conspiracy to murder, kidnap and maim persons in a foreign country ( 18 U.S.C. § 956(a)(1) ); (2) conspiracy to provide material support for terrorism ( 18 U.S.C. § 371 ); and (3) providing material support to terrorists ( 18 U.S.C. § 2339A(a) )." Id. Petitioner was sentenced to 188 months in prison and 20 years supervised release. See United States v. Jayyousi , 657 F.3d 1085, 1092 (11th Cir. 2011). After completing his term of imprisonment in October 2017, Petitioner "was again detained by immigration authorities on his original order of removal." Hassoun , 2019 WL 78984, at *1. However, United States Immigration and Customs Enforcement ("ICE") has been unsuccessful in removing Petitioner from this country. Lebanon has denied a request for travel documents on the basis that Petitioner is not a Lebanese citizen. (Dkt. 17 at ¶ 7). Representatives of the Palestinian Liberation Organization indicated that "their office would be willing to issue travel documents for Petitioner to enter the territory of the West Bank should Israel, in turn, issue a border crossing authorization," but Israel has not, to date, issued such an authorization. (Id. at ¶ 8). ICE has also unsuccessfully sought travel documents for Petitioner from Egypt, Iraq, Somalia, Sweden, and the United Arab Emirates, as well as from three unidentified countries. (Id. at ¶¶ 9-10). Petitioner has remained detained in immigration custody since October 2017.

III. Petitioner's First Habeas Petition and Detention Under 8 C.F.R. § 241.14(d)

In May 2018, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, contending that he was being unlawfully held by Respondent. Hassoun , 2019 WL 78984, at *1. On January 2, 2019, the Hon. Frank P. Geraci, Chief United States District Judge, issued a Decision and Order in which he found that there was no significant likelihood of Petitioner's removal from the United States in the reasonably foreseeable future and concluded that the Government had "exceeded its authority to detain Petitioner under 8 U.S.C. §§ 1227(a)(1)(C) & 1231(a)(6)." Id. at *8. Judge Geraci ordered that Petitioner be released on March 1, 2019, "unless the Court orders otherwise," but further held that "[t]he Court's order does not preclude Respondent ... from continuing to detain Petitioner on any other permissible basis under applicable statutes and regulations." Id. Judge Geraci ordered Respondent to "notify the Court if he determines that Petitioner will be detained on some other permissible basis." Id.

On February 22, 2019, Respondent filed a notice informing Judge Geraci that he intended to continue to detain Petitioner beyond March 1, 2019, pursuant to 8 C.F.R. § 241.14. Resp't's Notice of Pet'r's Detention, Hassoun v. Sessions , No. 18-CV-586-FPG, Dkt. 55 (W.D.N.Y. Feb. 22, 2019). Respondent's notice explained that ICE had, pursuant to 8 C.F.R. § 241.14(d)(2), provided Petitioner with a "Notice of Intent and Factual Basis to Continue Detention." Id. at 2. Judge Geraci thereafter entered a Text Order stating that he had "reviewed the notice and concludes that it complies with the Court's order. No further notice from Respondent is required, and this case remains closed." Hassoun v. Sessions , No. 18-CV-586-FPG, Dkt. 58 (W.D.N.Y. Feb. 26, 2019).

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