Al Najjar v. Ashcroft
| Decision Date | 19 February 2002 |
| Docket Number | No. 0220261CIV.,0220261CIV. |
| Parties | Mazen Al NAJJAR, Petitioner, v. John ASHCROFT, Attorney General, United States Department of Justice; James Ziglar, Commissioner, Immigration and Naturalization Service; Paul Schmidt, Chairman, Board of Immigration Appeals; Robert Wallis, District Director, Miami District of the INS; and Donald McKelvy, Warden, Federal Correctional Complex Coleman, Coleman, Florida, Respondents. |
| Court | U.S. District Court — Southern District of Florida |
Ira Jay Kurzban, Kurzban Kurzban Weinger & Tetzeli, Randall C. Marshall, ACLU Foundation of Florida, Miami, FL, Nancy Chang, Center for Constitutional Rights, New York, NY, David D. Cole, Georgetown University Law Center, Washington, DC, for Mazen al Najjar.
Dexter Lee, United States Attorney's Office, Miami, FL, Ethan B. Kanter, David D. Ogden, United States Justice Department, Immigration Litigation, Washington, DC, for all Defendants.
ORDER DENYING COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR HABEAS CORPUS AND EMERGENCY MOTION FOR RELEASE AND PRELIMINARY INJUNCTION
THIS CAUSE is before the Court on the Complaint for Declaratory and Injunctive Relief and Petition for Habeas Corpus (D.E.1) and Emergency Motion for Release and Preliminary Injunction (D.E.3), filed December 19, 2001, by Petitioner Mazen al Najjar. The Government filed a Reply on December 21, 2001. (DE 22.) On December 21, 2001, the Court requested additional briefing from the parties. (D.E.21.) Petitioner submitted its Brief on December 27, 2001. (D.E.23.) The Government filed a Reply on January 15, 2001. (D.E.24.) On January 22, 2002, the Court ordered the Government to brief an additional issue. (D.E.26.) The Government filed its Reply on January 23, 2002. (D.E.28.) Petitioner submitted a Response on January 29, 2002. (D.E.29.) Having reviewed the record in its entirety, the Court finds as follows.
This case unfolds as the third chapter in a series of legal actions involving Petitioner. The first was the Government's action to remove Petitioner from the United States due to his failure to maintain the conditions of his nonimmigrant status (hereinafter "the deportation case"). The second action was Petitioner's habeas petition for release on bond during the pendency of his deportation proceedings (hereinafter "the bond case"). The case sub judice is a habeas action seeking release from detention pending Petitioner's removal from the United States pursuant to a deportation order that became final on November 13, 2001.
Petitioner 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 received a bachelor's degree. From 1979 to 1981, he worked in the United Arab Emirates ("UAE") on a temporary work visa. In 1981, Petitioner first entered the United States on a Palestinian refugee travel document issued by the Egyptian government. Aside from a brief trip abroad in 1984, Petitioner has remained in the United States since that time. He obtained his doctorate degree in engineering at the University of South Florida ("USF") in 1994. In addition, he helped found at USF the World and Islam Studies Enterprise ("WISE"), described as "a think-tank ostensibly committed to educating the public about Islamic issues through research, publishing and seminars." Al Najjar v. Ashcroft, 257 F.3d 1262, 1272 (11th Cir.2001).
The deportation case against Petitioner commenced on April 19, 1985, when the Immigration and Naturalization Service ("INS") issued an order to show cause under 8 U.S.C. § 1251(a)(9) (1984), alleging that Petitioner had failed to maintain the conditions of his nonimmigrant status by providing untruthful information to the INS about his marriage. The INS later supplemented the order to show cause by charging that Petitioner had not maintained the conditions of his nonimmigrant status under the Immigration and Nationality Act ("INA"). On June 4, 1986, the case against Petitioner was administratively closed after he failed to appear at an administrative hearing. A few weeks later, Petitioner asked the INS to reopen the hearing once he received notice, but he received no response.
A decade later, the INS rescheduled Petitioner's case for a deportation hearing on February 8, 1996. Petitioner's proceedings were consolidated with those of his wife, Fedaa. At the hearing, Petitioner conceded deportability on the ground that he had overstayed his nonimmigrant student visa, but he sought relief from deportation, including asylum, withholding of removal and suspension of deportation. The INS objected to Petitioner's request for discretionary relief. On May 13, 1997, the immigration judge ("IJ") found Petitioner deportable and denied his application for relief. The IJ designated the UAE as the country of deportation, and Petitioner appealed to the Board of Immigration Appeals ("BIA").
On October 26, 1999, the BIA affirmed the May 1997 deportation order against Petitioner and his wife. Petitioner and his wife then appealed the BIA decision to the Eleventh Circuit United States Court of Appeals. On December 16, 1999, the Eleventh Circuit granted Petitioner and his wife's unopposed motion to stay deportation pending completion of their appeal.
On July 18, 2001, the Eleventh Circuit upheld the deportation orders against Petitioner and his wife. Al Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir.2001). The court concluded that Petitioner was ineligible for asylum because he lacked a "credible fear" of persecution in the UAE, that he did not meet the burden for withholding of removal, and that he did not merit discretionary relief on any other claimed ground. On October 25, 2001, the Eleventh Circuit denied Petitioner's motions to reconsider and for rehearing en banc. On November 13, 2001, the Eleventh Circuit also denied Petitioner's motion to stay issuance of the mandate pending a petition for writ of certiorari to the Supreme Court. The mandate in the deportation case issued on the same day.
On November 24, 2001, Petitioner was taken into custody and brought to a federal detention center in Coleman, Florida. (Compl.¶ 31.) Petitioner filed the instant Petition for Habeas Corpus on December 19, 2001.1
Petitioner argues that he cannot be detained pursuant to the final order of deportation absent a Government showing that he poses a risk of flight, a danger to the community, or a threat to national security. Essentially, Petitioner contends that the standard applicable to post-final-deportation-order detention is the same as that which governed his detention while he was in deportation proceedings.2 Because the Government has not demonstrated that Petitioner is a flight risk or a security threat, Petitioner asserts that his current detention violates the INA and his Fifth Amendment rights to substantive and procedural due process. Furthermore, Petitioner asserts that the Government will not be able to deport him in the reasonably foreseeable future, since the UAE will not grant him entry. Petitioner also alleges that he is being held on the basis of his political associations in violation of the First and Fifth Amendments. Alternatively, Petitioner claims that the conditions of his confinement violate the Fifth Amendment.
Based on these allegations, Petitioner seeks: (1) a writ of habeas corpus requiring his immediate release; (2) a judgment declaring his detention to be in violation of the INA and the Constitution; (3) an injunction preventing the Government from detaining him in the future without newly discovered evidence showing that he poses a risk of flight or a threat to the community or national security; (4) alternatively, an order that he be returned to Manatee County jail in Bradenton, Florida, under the conditions applicable to him at the time of his release in December 2000;3 and (5) attorney's fees and costs.
The Government contends that, since a final deportation order has been entered, the Attorney General has unfettered discretion to detain Petitioner without regard to whether he poses a threat to the community, a national security risk, or a risk of flight.4
Initially, the Court must determine whether it has jurisdiction to hear Petitioner's claims pursuant to the primary federal habeas corpus statute, 28 U.S.C. § 2241. In recent years, Congress has enacted numerous statutory provisions restricting the scope of judicial review in immigration matters. The Supreme Court, however, has clarified that federal courts retain section 2241 jurisdiction to hear an alien's statutory and constitutional challenges with respect to the extent of the Attorney General's authority to detain the alien after entry of a final removal order. Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 2497-98, 150 L.Ed.2d 653 (2001). The Zadvydas Court noted, however, that the INA precludes judicial review of decisions "specified ... to be in the discretion of the Attorney General." Id. (citing 8 U.S.C. § 1252(a)(2)(B)(ii) (1994 ed., Supp. V)). Thus, while this Court has habeas jurisdiction to hear Petitioner's statutory and constitutional claims regarding the extent of the Attorney General's authority to detain him pending removal, the Court will not consider any challenge to decisions within the discretion of the Attorney General.5
Having determined that jurisdiction exists, the Court must determine what law governs the substantive analysis of Petitioner's claims. This task has been simplified by the Eleventh Circuit's previous determination that the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") govern Petitioner's deportation proceedings. Al Najjar, 257 F.3d at 1276-77. The remaining question is what statutory provision governs detention...
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