Najjar v. Reno, 99-3458-CIV.
| Decision Date | 31 May 2000 |
| Docket Number | No. 99-3458-CIV.,99-3458-CIV. |
| Parties | Mazen Al NAJJAR, Petitioner, v. Janet RENO, Attorney General, United States Department of Justice; Doris Meissner, Commissioner Immigration and Naturalization Service; Paul Schmidt, Chairman, Board of Immigration Appeals; Robert Wallis, District Director, Miami District of the INS; and S. Kent Dodd, Warden, Manatee County Downtown Facility, Respondents. |
| Court | U.S. District Court — Southern District of Florida |
David Cole, Washington, DC, Martin B. Schwartz, Tampa, FL, Joseph C. Hohenstein, Philadelphia, PA, Nancy Chang, New York City, Andrew H. Kayton, Miami, FL, for petitioner.
Michael Lindemann, Ethan Kanter, U.S. Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, Dexter Lee, U.S. Attorney's Office, Miami, FL, for respondents.
ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS, DENYING MOTION TO DISMISS, DENYING MOTION TO STRIKE AND CLOSING THIS CASE
THIS CAUSE is before the Court on the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, filed December 22, 1999, and Respondents' Answer and Motion to Dismiss the Petition, filed February 1, 2000. The parties appeared before the Court for oral argument on April 18, 2000. Having reviewed the Petition, the Government's Answer and Motion, and the public record in this case,1 having heard the oral arguments of the parties, and having been otherwise advised in the premises, for the reasons set forth below, the Court denies the Motion to Dismiss and grants the Petition to the extent that: (1) the bond redetermination decisions of the Immigration Judge, dated June 23, 1997, and of the Bureau of Immigration Affairs, dated September 15, 1998, are vacated; and (2) this matter is remanded to the Immigration and Naturalization Service for further proceedings consistent with this Order.
Petitioner Mazen Al Najjar is a forty-three year-old Palestinian native of Gaza. He holds an expired Palestinian travel document issued by the Egyptian government. He first entered the United States in 1981 as a non-immigrant graduate student and began studying at North Carolina Agricultural and Technical State University in Greensboro, North Carolina, from which he received a Master's Degree in Industrial Engineering in 1984. He last entered the United States on December 8, 1984, with authorization to remain for the duration of the period of his non-immigrant graduate student status.
Petitioner's former spouse, Jan Fairbetter, filed a petition for adjustment of status on his behalf with the Immigration and Naturalization Service ("INS"). (See Resp. Answer and Motion to Dismiss ("Resp.Answer") Ex. 2 at 3.)2 That petition was denied, and on April 19, 1985, the INS issued an order to show cause alleging that Petitioner was deportable pursuant to section 241(a)(9) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1251(a)(9),3 for failure to maintain and comply with the non-immigrant status under which he had been admitted. With the order to show cause, the INS provided: (1) notice to Petitioner that a hearing on his deportability would be held before an IJ on June 4, 1986; and (2) a warrant for his arrest. On June 4, 1986, Petitioner failed to appear at the hearing, and the Immigration Judge ("IJ") administratively closed Petitioner's case. Petitioner maintains that he did not appear at the hearing because he did not receive notice of the scheduled hearing until June 6, 1986, and that on June 18, 1986 he filed a request to re-open the proceedings, to which the INS did not respond.
On June 21, 1993, World and Islam Studies Enterprise ("WISE"), an organization affiliated with the University of South Florida, submitted to the INS an "Immigrant Petition for Alien Worker" requesting a change of Petitioner's status as an alien worker. (See Resp. Answer Ex. 2 at 1.) This petition stated that, as Chief Executive Officer of WISE, Petitioner "[o]versees and directs all research, publishing and educational activities of the institution [and][d]irects all fund-raising and financial aspects of the non-profit corporation," for which he received an annual salary of $ 32,400.00. (Id. at 2.) In 1993, the INS granted this petition and reclassified Petitioner as a "member of professions with advanced degree or of exceptional ability," pursuant to 8 C.F.R. § 203(b)(2) (1992). (Id. at 1.)
The INS eventually re-calendared Petitioner's case for a deportation hearing on February 8, 1996. At this hearing, Petitioner conceded his deportability on the ground that he had overstayed his non-immigrant student visa in violation of INA § 241(a)(9) and sought discretionary relief from deportation, including suspension of deportation, asylum and withholding of removal. On May 13, 1997, IJ J. Daniel Dowell issued a written decision and order, (the "IJ's Deportation Decision") (Petition Ex. C), finding Petitioner deportable as charged and denying his applications for discretionary relief. At the time, Petitioner maintained that he was stateless, declined to designate a country of deportation, and did not request voluntary departure. The IJ therefore designated United Arab Emirates as Petitioner's country of deportation. Petitioner filed an appeal of the IJ's Deportation Decision with the Board of Immigration Appeals ("BIA").
On May 19, 1997, pending the appeal to the BIA, the INS District Director took Petitioner into custody and detained him without bond. Petitioner requested a redetermination of his custody status pursuant to 8 C.F.R. § 242.2(d) (1995). On May 28, 1997, the INS served Petitioner with a notice of its intent to present classified information in an in camera proceeding in support of its custody determination. (See Petition Ex. E at 1.) On May 29, 1997, IJ R. Kevin McHugh held a bond redetermination hearing at which Petitioner presented several witnesses and evidence of his employment history and strong community and family ties. Federal Bureau of Investigations Special Agent West also testified at the hearing that Petitioner was a member of WISE, an organization known to support the Palestinian Islamic Jihad ("PIJ"),4 and that there was an on-going multi-agency investigation into Petitioner's involvement in visa fraud, voter fraud, support to known terrorist organizations, and a sham marriage. On the same day, the IJ held an ex parte in camera hearing to receive classified information from the INS regarding Petitioner's connection with the PIJ. Neither Petitioner nor his counsel were present at this hearing and no record of the in camera proceeding was made. On June 2, 1997, the IJ provided Petitioner with an unclassified summary of the classified information, which stated: "This Court was provided with information as to the association of [Petitioner] with the Palestinian Islamic Jihad." (See Petition Ex. F at 1.)
On June 6, 1997, the IJ re-opened the public portion of the bond redetermination hearing, and Petitioner presented witnesses in rebuttal to the unclassified summary of the classified information. Dr. Louis Cantori testified that he was an advisory editor of a journal for which Petitioner was the managing editor and that he (Dr. Cantori) had attended two conferences sponsored by WISE. Dr. Cantori further testified that he would be "shocked" if he learned that Petitioner was associated with the PIJ. Former United States Attorney General Ramsey Clark also testified on Petitioner's behalf. Based on his experience as Attorney General from 1960 to 1969, Clark expressed concerns about the reliability of classified information and stated that corroboration of such evidence was often difficult.
On June 23, 1997, IJ McHugh issued a memorandum decision (the "IJ's Bond Redetermination Decision") (Petition Ex. A), in which he found that Petitioner did not have a history of non-appearance at court proceedings, and that Petitioner was "a well respected man, socially, religiously, and professionally [with] strong community and family ties." (Id. at 6.) The IJ further found that the classified information was pertinent and reliable on the issue of Petitioner's threat to national security. Based on this classified information, the IJ found that Petitioner was a threat to national security, "[s]pecifically, because of his association with the Palestinian Islamic Jihad terrorist organization." (Id.) Accordingly, the IJ held that Petitioner would continue to be detained without bond.
Petitioner appealed this decision to the BIA, on the grounds that: (a) the introduction of classified evidence in an ex parte in camera proceeding was not expressly authorized by the INA or regulations; (b) the IJ's reliance on the classified evidence deprived him of his liberty without due process of law in violation of the Fifth Amendment; and (c) the IJ's reliance on the classified evidence in finding him a threat to national security violated his First Amendment right to freedom of association. (See Petition Ex. B at 4-5.) The INS argued that the IJ's ex parte in camera consideration of the classified evidence was within the IJ's discretion, that the bond proceedings complied with due process, and that the evidence supported the IJ's determination that Petitioner presented a threat to the national security.
Addressing the fundamental fairness of the bond proceedings in its September 15, 1998 Decision (the "BIA Bond Redetermination Decision") (Petition Ex. B), the BIA found that "in view of the government's compelling need to shield important, classified national security information bearing on this matter, the Immigration Judge's examination of the ex parte evidence in camera was proper and constitutionally sound,"...
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