Najjar v. Ashcroft

• Decision Date: 28 November 2001
• Docket Number: No. 00-14947,00-14947
• Citation: 273 F.3d 1330
• Parties: (11th Cir. 2001) MAZEN AL NAJJAR, Petitioner-Appellee, Cross-Appellant, v. JOHN ASHCROFT, Attorney General, United States Department of Justice, DORIS MEISNER, Commissioner, Immigration and Naturalization Service, et al., Respondents -Appellants, Cross-Appellees
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1330

273 F.3d 1330 (11th Cir. 2001)

MAZEN AL NAJJAR, Petitioner-Appellee, Cross-Appellant, v. JOHN ASHCROFT, Attorney General, United States Department of Justice, DORIS MEISNER, Commissioner, Immigration and Naturalization Service, et al., Respondents -Appellants, Cross-Appellees.

No. 00-14947

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

November 28, 2001

[Copyrighted Material Omitted] Appeals from the United States District Court for the Southern District of Florida

Before HULL, MARCUS and FARRIS^*, Circuit Judges.

PER CURIAM:

Respondents-Appellants John Ashcroft, et al. ("the Attorney General") appeal a decision of the district court granting Petitioner-Appellee Mazen Al Najjar's request for habeas corpus relief in connection with his bond redetermination proceedings. In an order dated May 31, 2000, the district court ruled that the government could not detain Al Najjar pending judicial review of the BIA's order of deportation on the basis of undisclosed, classified information linking him to the Palestinian Islamic Jihad ("PIJ"), a terrorist organization. See Al Najjar v. Reno, 97 F. Supp. 2d 1329 (S.D. Fla. 2000). Just recently, however, on November 13, 2001, a mandate issued from a panel of this Court in a related case denying Al Najjar's petition for judicial review and affirming the BIA's deportation order on grounds completely unconnected to the terrorist allegations. See Case No. 99-14807 (underlying panel decision at Al Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001)). Because the issuance of the November 13th mandate constitutes a final order of deportation, the Attorney General now possesses the unquestioned authority to detain Al Najjar without bond as he executes that order without regard to any classified information portraying Al Najjar as a national security threat. The government's appeal of his separate bond case is therefore moot, depriving this Court of jurisdiction. Accordingly, the appeal must be dismissed and the district court's order, as well as the bond granted on remand, vacated.

I.

Understanding the circumstances of this case requires a discussion of two separate, yet largely concurrent, legal actions involving Al Najjar. The first action is the government's effort to remove Al Najjar from the United States due to the expiration of his status as a legal alien. The second action, which is the subject of this appeal, is Al Najjar's bid to be released from detention on bond during the pendency of his deportation proceedings. In the end, it is the recent and final completion of the first action that renders the instant case unambiguously moot.

Al Najjar was born in Gaza in 1957 and moved with his family to Saudi Arabia one year later. After thirteen years there, he moved to Egypt, where he completed high school and eventually received a bachelor's degree in 1979. From 1979 to 1981, he worked in the United Arab Emirates ("UAE") on a temporary work visa. In 1981, Al Najjar first entered the United States on a Palestinian refugee travel document issued by the Egyptian government. Aside from a brief trip abroad in 1984, Al Najjar has remained in this country since that time. After obtaining authorization from the Immigration and Naturalization Service ("INS") to stay in the United States for the duration of his nonimmigrant student status, Al Najjar pursued graduate degrees in engineering in North Carolina and at the University of South Florida ("USF") in Tampa, earning a doctorate in 1994. In addition to his engineering work, Al Najjar helped to found at USF the World and Islam Studies Enterprise ("WISE"), described by this Court in the related case as "a think-tank ostensibly committed to educating the public about Islamic issues through research, publishing, and seminars." 257 F.3d at 1272.

The first legal action against Al Najjar (the government's effort to deport him) commenced on April 19, 1985, when the INS issued an order to show cause under 8 U.S.C. § 1251(a)(9) (1984), alleging that Al Najjar had failed to maintain the conditions of his nonimmigrant status by providing untruthful information to the INS. The basis of the allegation was a claim by Al Najjar's first wife that she had participated in a sham marriage to allow him to obtain a green card. The INS later supplemented the order to show cause by charging that Al Najjar had not maintained the conditions of his nonimmigrant status under the Immigration and Nationality Act ("INA"). On June 4, 1986, the case against Al Najjar was closed when he failed to appear at an administrative hearing. Al Najjar asked the INS to re-open the hearing once he received notice of it a few weeks later, but he received no response.

After a decade had passed, the INS rescheduled Al Najjar's case for a deportation hearing on February 8, 1996. Those proceedings were consolidated with deportation proceedings for his wife, Fedaa. At the hearing, Al Najjar conceded his deportability on the ground that he had overstayed his nonimmigrant student visa status, but he asked for relief from deportation, including asylum, withholding of removal, and suspension. In an effort to show that Al Najjar should not be given discretionary relief, the INS produced at the administrative hearing evidence purportedly linking Al Najjar and WISE to the PIJ, a known terrorist group, and various individuals who have supported and engaged in terrorism in the Middle East. On May 13, 1997, an immigration judge ("IJ") found Al Najjar deportable and denied his application for relief. The IJ designated the UAE as his country of deportation, and Al Najjar appealed to the Board of Immigration Appeals ("BIA").

Six days after the IJ's ruling, federal agents arrested Al Najjar on the basis of classified information that he was connected to Middle Eastern terrorist organizations and detained him without bond on the ground that he posed a threat to national security. The second relevant legal action then commenced when, pursuant to 8 C.F.R. § 242.2(d) (1995), Al Najjar requested a redetermination of his custody status. The IJ conducted a two-part hearing. The first part of the hearing was public and the second consisted of an ex parte review of classified information. The IJ then re-opened the public hearing to allow Al Najjar to rebut an unclassified summary of the confidential material. The summary stated that "[t]his Court was provided with information as to the association of [Al Najjar] with the Palestinian Islamic Jihad." Al Najjar's attorneys then called witnesses to rebut the allegation in this summary. On June 23, 1997, the IJ held that Al Najjar should remain detained without bond because he "is associated with a terrorist organization known as the Palestinian Islamic Jihad." Al Najjar appealed the bond decision to the BIA, arguing that the consideration of classified evidence in ex parte proceedings violated various statutory and constitutional rights. On September 15, 1997, the BIA affirmed the IJ's bond decision.

Two years later, on October 26, 1999, a different BIA panel affirmed the May 1997 IJ decision in the first action, ordering the deportation of Al Najjar and his wife. The Al Najjars then petitioned this Court for judicial review of their orders of deportation issued by the BIA. At the beginning of that judicial review, on December 16, 1999, a panel of this Court granted the Al Najjars' unopposed motions to stay deportation pending completion of their appeals to this Court.

After his deportation order was stayed and while his petition for judicial review of his deportation order was pending, Al Najjar filed on December 22, 1999 a petition for a writ of habeas corpus in the United States District Court for the Southern District of Florida pursuant to 28 U.S.C. § 2241, seeking his immediate release from custody pending the conclusion of the deportation proceedings. Like the appeal to the BIA, the habeas petition alleged that the consideration of classified material was barred by both the INA and the due process clause of the Fifth Amendment of the United States Constitution. The petition also claimed that Al Najjar was being punished on the basis of his political associations in violation of the First and Fifth Amendments.

On May 31, 2000, with the direct appeal of the merits of his deportation order still pending, the district court granted in part Al Najjar's petition for habeas relief. In its opinion, the district court framed the question in the case as "whether Petitioner has been denied the right to a fundamentally fair bond redetermination hearing pending the final determination of his deportation proceedings." 97 F. Supp. 2d at 1342. Despite finding that the consideration of classified material was permitted under INA § 242(a), 8 U.S.C. § 1252(a) (1995), the court determined, notably without examining the evidence, that the ex parte, in camera proceedings violated Al Najjar's due process rights. This decision was based in large part on the district court's determination that Al Najjar retained certain due process rights because he was not yet subject to a final order of deportation: "[A]s a 'deportable' alien at the time of the bond redetermination hearing, Petitioner enjoys greater protections of due process than those afforded to [aliens] . . . subject to final orders of deportation from the United States." Id. at 1353. The district court also explained that Al Najjar's "mere association" with known terrorists was not alone a basis for detention. Id. at 1361.

As a remedy, the district court remanded the matter back to the IJ to make an initial determination of Al Najjar's entitlement to bond based solely on the public record. If the public evidence did not support detention, the government would be allowed to introduce the classified evidence in a way that afforded Al Najjar "access to the decisive evidence to the fullest extent possible, without jeopardizing legitimately raised national security interests." Id. at 1358...