Hassoun v. Searls

• Court: United States District Courts. 2nd Circuit. United States District Court of Western District of New York
• Citation: 469 F.Supp.3d 69
• 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.
• Decision Date: 29 June 2020

469 F.Supp.3d 69

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 June 29, 2020

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Gregory David Stefan, Kevin Patrick Hudson, Melissa E. O'Boyle, United States Attorney's Office, Scott W. Putney, Scott W. Putney, P.C., Norfolk, VA, G. Wingate Grant, Katherine Lee Martin, United States Attorney's Office, Richmond, VA, Uzo Asonye, US Attorney's Office, Alexandria, VA, 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 (the "BFDF") in Batavia, New York, who seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and 8 U.S.C. § 1226a(b). Petitioner contends that his current detention is not lawfully authorized by statute or regulation and that he must be released, with appropriate conditions of supervision. Respondent Jeffrey Searls ("Respondent"), the Acting Assistant Field Office Director and Administrator of the BFDF, contends that Petitioner is permissibly detained pursuant to both 8 U.S.C. § 1226a(a) and 8 C.F.R. § 241.14(d).

For the reasons discussed below and in its prior decisions in this matter, the Court finds that neither 8 U.S.C. § 1226a(a) nor 8 C.F.R. § 241.14(d) lawfully authorizes Petitioner's continued detention. Accordingly, the Court grants the Petition and orders Respondent to release Petitioner, subject to the conditions of supervision set forth below. The Court further denies Respondent's request that Petitioner's release be

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stayed pending appeal (Dkt. 242); however, the Court temporarily stays Petitioner's release until 12:00 p.m. on July 2, 2020, to allow Respondent an opportunity to seek emergency relief from an appellate court if he so chooses.

BACKGROUND

The Court has issued several prior Decisions and Orders in this matter (see Dkt. 55; Dkt. 75; Dkt. 138; Dkt. 150; Dkt. 225), familiarity with which is assumed for purposes of this Decision and Order. For ease of reference, the Court has summarized the salient facts and procedural history below.

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). Removal proceedings were instituted against him in 2002, after he failed to comply with the conditions of his student visa, and his final 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, and was ultimately convicted of "(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). Petitioner completed his term of imprisonment in October 2017, and "was again detained by immigration authorities on his original order of removal." Hassoun , 2019 WL 78984, at *1. However, to date, United States Immigration and Customs Enforcement ("ICE") has been unsuccessful in removing Petitioner from this country, despite ongoing efforts to do so. Petitioner has remained detained in immigration custody since October 2017. (Dkt. 1 at ¶ 45).

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(d). 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). 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).

Petitioner commenced the instant habeas corpus proceeding on March 15, 2019.

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(Dkt. 1). He filed an Amended Petition and a memorandum in support thereof on May 14, 2019. (Dkt. 13; Dkt. 14). Respondent filed his opposition to the Amended Petition on June 28, 2019. (Dkt. 17). Petitioner filed a reply on August 9, 2019. (Dkt. 25).

Also on August 9, 2019, then-Acting Secretary of Homeland Security Kevin K. McAleenan ("Secretary McAleenan") certified Petitioner's continued detention under 8 C.F.R. § 241.14(d). (Dkt. 30-1). Secretary McAleenan further certified Petitioner's continued detention as "an alien engaged in terrorist activity and engaged in an activity that endangers the national security of the United States" under § 1226a. (Dkt. 30-2 at 2).

At the request of the parties, supplemental briefing was submitted in September and October of 2019. (See Dkt. 26; Dkt. 28; Dkt. 30; Dkt. 32). Oral argument was held before the undersigned on November 22, 2019. (Dkt. 53). On December 13, 2019, the Court entered a Decision and Order finding that Petitioner's continued detention is not lawfully authorized by 8 C.F.R. § 241.14(d) and ordering an evidentiary hearing regarding the lawfulness of Petitioner's continued detention pursuant to 8 U.S.C. § 1226a. (Dkt. 55).

After additional briefing by the parties (see Dkt. 60; Dkt. 61; Dkt. 63; Dkt. 67), on January 24, 2020, the Court issued a Decision and Order regarding the parameters of the evidentiary hearing. (Dkt. 75). In particular, the Court held that: (1) at the evidentiary hearing, Respondent would bear the burden of demonstrating by clear and convincing evidence that the factual predicate for continued detention under 8 U.S.C. § 1226a(a)(6) was met in this case¹ ; (2) Petitioner bore the burden of demonstrating that the identity of the confidential informants in this case should be revealed; and (3) hearsay evidence would be admissible at the evidentiary hearing if the party proffering such evidence demonstrated that it was reliable and that it would be unduly burdensome to submit non-hearsay evidence. (Id. at 21-22).

The Court permitted the parties to engage in discovery in advance of the evidentiary hearing. (See Dkt. 57; Dkt. 58; Dkt. 70). On February 28, 2020, Petitioner filed a motion to compel and for a protective order (Dkt. 91), and Respondent filed a motion to defer consideration of any potential assertion of the state secrets privilege (Dkt. 90). The Court heard oral argument on the parties’ discovery motions on March 16, 2020, and orally announced certain rulings while reserving decision as to other issues. (Dkt. 113; Dkt. 114).

On March 31, 2020, Respondent filed a motion to adjourn the evidentiary hearing, which was then scheduled to commence on April 28, 2020, due to the COVID-19 pandemic. (Dkt. 120). Petitioner filed a cross-motion seeking a transfer to home incarceration and, barring such relief, opposed the motion to adjourn. (Dkt. 122). On April 10, 2020, the Court entered a Decision and Order denying Petitioner's motion for transfer to home incarceration and granting Respondent's request to adjourn the evidentiary hearing. (Dkt. 150).

In consultation with the parties, the Court rescheduled the evidentiary hearing to commence on June 24, 2020. (Dkt. 158). The Court set a deadline of May 22, 2020, for filing of witness and exhibit lists and scheduled a final pre-hearing conference for June 12, 2020. (Id. ). The Court further ordered the parties to submit pre-hearing legal memoranda by May 22, 2020, that,

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among other things, "identif[ied] any hearsay evidence that the party seeks to present at the evidentiary hearing, setting forth the legal basis for the proposed admission of the testimony in accordance with the framework identified by the Court in its Decision and Order entered on January 24, 2020." (Id. ). On...