Khouzam v. Hogan
| Decision Date | 10 January 2008 |
| Docket Number | No. 3:CV-07-0992.,3:CV-07-0992. |
| Citation | 529 F.Supp.2d 543 |
| Parties | Sameh Semi S. KHOUZAM, Petitioner v. Thomas H. HOGAN, et al., Respondents. |
| Court | U.S. District Court — Middle District of Pennsylvania |
Catherine Roper, American Civil Liberties Union of Pennsylvania, Philadelphia; PA, for Petitioner.
Douglas Ginsburg, Office of Immigration Litigation, Jay Alan Sekulow, Stuart J. Roth, Washington, DC, Nathanael J. Byerly, U.S. Attorney's Office, Andrew L. Swope, Kirkpatrick & Lockhart LLP, Harrisburg, PA, Kristina J. Wenberg, Laura Brown Hernandez, Virginia Beach, VA, for Respondents.
At the center of this habeas corpus proceeding lies an Egyptian diplomatic assurance that Petitioner Sameh Semi S. Khouzam, an alien presently in custody in a prison in York County, Pennsylvania, will not be tortured if returned to Egypt, where allegedly he has been convicted in absentia of murder. Respondents, the legal custodians of Khouzam (sometimes referred to herein as the Government), assert that the diplomatic assurance preempts a prior judicial determination that it is probable that Khouzam will be tortured if removed to Egypt. See Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir.2004). Khouzam, a Coptic Christian who made a credible showing that he had been the victim of torture at the hands of Egyptian law enforcement officials before fleeing to the United States, essentially presents three challenges to his removal to Egypt: First, he argues that the Government's reliance upon a diplomatic assurance from Egypt violates the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 ("CAT"), as implemented in the United States by the Foreign Affairs Reform and Restructuring Act ("FARA"), Pub.L. No. 105-277, Div. G., Title XXII, § 2242, 112 Stat. 2681-822 (Oct. 21, 1998) (codified as Note to 8 U.S.C. § 1231). He next contends that, even if there is no categorical prohibition against Egyptian diplomatic assurances, the Government failed to comply with applicable regulations implementing PARRA. Finally, he asserts that the Government's refusal to allow any review of the diplomatic assurance is contrary to congressional intent expressed in FARRA as well as the Fifth Amendment's Due Process Clause.
Having carefully considered the thoroughly-briefed arguments of the parties, I have concluded that diplomatic assurances from States regarded as routinely engaging in torture, such as Egypt, do not, per se, violate CAT or FARRA. I have also found that there is a substantial question of fact as to whether the Government complied with the regulations concerning deportation on the basis of a diplomatic assurance. Finally, I have determined that the Government's refusal to expose the Egyptian diplomatic assurance to review by any impartial tribunal is not consonant with congressional intent expressed in FARRA, and that, even if FARRA did not require an opportunity to challenge the Government's reliance upon the diplomatic assurance, Khouzam's right to be free from torture is such that the Due Process Clause mandates a fair process that includes review of the diplomatic assurance by an impartial adjudicator. In light of the Government's refusal to expose the Egyptian diplomatic assurance to any sort of impartial review, the Government may not proceed with the removal of Khetzam. Accordingly, his habeas corpus petition will be granted. Because there is no probability that Khouzam will be removed from the United States in the reasonably foreseeable future, the Government will be ordered to release him subject to appropriate terms and conditions.
Khouzam, a national and citizen of Egypt, sought to enter the United States on February 11, 1998. Admission was denied because his non-immigrant visa had been canceled after Egyptian authorities notified the United States that Khouzam was suspected of murdering an Egyptian woman. Khouzam was taken into custody, and removal proceedings were commenced.
On May 4, 1998, an Immigration Judge (IJ), having concluded that there were substantial grounds for believing that Khouzam had committed a serious nonpolitical crime in Egypt, ruled that Khouzam was statutorily ineligible for asylum or withholding of removal under sections 208(b)(2)(A)(iii) and 241(b)(3)(B)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1158(b)(2)(A)(iii) and 1231(b)(3)(B)(iii). (Response to Habeas Corpus Pet., Dkt. Entry 9, at 000874-84.) On January 4, 1999, the Board of Immigration Appeals (BIA) affirmed the IJ's determination that there were substantial reasons to believe that Khouzam had committed a serious non-political crime outside the United States prior to his arrival in the United States. (Id. at 000722-24) The BIA also rejected Khouzam's request to remand the matter to the IJ for consideration of additional evidence. (Id.)
On July 18, 1999, Khouzam moved to reopen the proceedings in order to allow him to apply for relief under Article 3 of CAT. In a decision dated July 26, 1999, the BIA granted the motion to re-open, explaining that Khouzam was eligible to seek such relief under recently promulgated rules of the Department of Justice implementing § 2242 of FARRA. (Id. at 000707-08.) The BIA Order indicated that both Khouzam and the Government could present "additional evidence" on the issue of "Khottzam[s] eligibility for relief from deportation pursuant to [CAT] as set forth in the interim regulations." (Id. at 000708.)
In a written decision dated January 14, 2000, the IJ summarized the testimony presented by Khouzam and an expert witness called by Khouzam to testify to conditions existing in Egypt at that time. (Id. at 000489-500.) As related by the IJ, Khouzam testified to a number of incidents during which he was subjected to cruel and inhumane treatment by Egyptian law enforcement officers. These incidents included the insertion of rubber hoses up his rectum, being stabbed in the stomach with a screw driver, and physical beatings resulting in injuries that required surgical intervention. Khouzam attributed these incidents to his adherence to the Coptic Christian religion in the face of demands that he convert to Islam.
According to Khouzam, the efforts to compel his conversion included a false accusation that he had sexually assaulted a co-worker in 1997, resulting in his fleeing Egypt along with his wife to the United States. Khouzam claimed that he returned to Egypt only after being informed that his mother had been detained by Egyptian authorities for assisting him in leaving Egypt.
A final encounter with Egyptian authorities, according to Khouzam, resulted in his escaping police custody by climbing out of a bathroom window at the hospital where he had been taken for treatment of an injured hand. The injury had occurred during a melee when he was assaulted for refusing to marry the woman that he had been accused of sexually assaulting.
Although finding Khouzam's testimony less than fully credible, the IJ credited the expert witness evidence concerning conditions existing in Egypt, especially in relation to Coptic Christians. The IJ concluded:
The court has considered the country conditions in Egypt, including the long history of discrimination against Christians in Egypt by the government, the continued violence against Christiana by Islamic zealots and occasionally by the security forces and police, and the often-time abusive conditions of its detainees and inmates. Such evidence exists in the form of documents authored by the United States government, and through the testimony of a witness acknowledged by [the Government] for his expertise in the area under scrutiny by this court. Taken together, the evidence is overwhelming that [Khouzam] will more likely than not be subjected, to torture by a responsible Egyptian government official who will breach his duty and engage in the torture of [Khouzam], or at the least, will abdicate such duty by acquiescing in such torture . . . .
(Id. at 000499-500; emphasis added.) In granting deferral of removal, the. IJ provided the following notice to Khouzam:
(i) Deferral does not confer any lawful or permanent status in the United States;
(ii) Deferral will not necessarily result in the alien being released from custody . . . if the alien' is subject to such custody;
(iii) Deferral is effective until terminated;
(iv) Deferral is subject to review and termination if the immigration judge determines that it is not likely that the alien would be tortured in the country to which removal has been deferred, or if the alien requests that deferral be terminated.
(Id. at 500.) The IJ further wrote that "the Secretary of State may, in her discretion, seek diplomatic assurances from the Egyptian government that [Khouzam] would not be tortured if he is returned there, and then, in consultation with the
Attorney General, may separately assess the adequacy of such assurances." (Id.) The IJ explained that, in such a case, a diplomatic assurance "would override this court's Order deferring removal." (Id.)
In a decision dated July 24, 2000, the BIA affirmed the deferral of removal, stating:
In light of the evidence that the Egyptian authorities routinely torture and abuse suspected criminals and the medical evidence indicating that [Khouzam] has scars and injuries which are consistent with past torture, we agree with the Immigration Judge that the respondent has established that it is more likely than not that he would be tortured if returned to Egypt.
(Id. at 000452.) In...
To continue reading
Request your trial
-
Khouzam v. Attorney General of U.S.
...either party appealed the habeas ruling. On January 10, 2008, the District Court granted Khouzam's habeas petition. Khouzam v. Hogan, 529 F.Supp.2d 543, 571 (M.D.Pa.2008). As a threshold matter, the Court determined that it had jurisdiction over the habeas petition notwithstanding certain s......
-
Normalizing Guantanamo.
...Khouzam, and prepared to remove him based on diplomatic assurances by Egypt that he would not be tortured."). (151.) Khouzam v. Hogan, 529 F. Supp. 2d 543, 547 (M.D. Pa. (152.) Khouzam, 549 F.3d at 244--49. (153.) 480 F.3d 664 (4th Cir. 2007). (154.) Mironescu v. Rice, No. 05-683, 2006 WL 1......