United States ex rel. Barbour v. DISTRICT DIR., 73-1411.

• Decision Date: 21 March 1974
• Docket Number: No. 73-1411.,73-1411.
• Citation: 491 F.2d 573
• Parties: UNITED STATES of America ex rel. Mamdouh BARBOUR, Petitioner-Appellant, v. DISTRICT DIRECTOR OF the IMMIGRATION AND NATURALIZATION SERVICE, SAN ANTONIO, TEXAS, etc., Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

491 F.2d 573 (1974)

UNITED STATES of America ex rel. Mamdouh BARBOUR, Petitioner-Appellant, v. DISTRICT DIRECTOR OF the IMMIGRATION AND NATURALIZATION SERVICE, SAN ANTONIO, TEXAS, etc., Respondent-Appellee.

No. 73-1411.

United States Court of Appeals, Fifth Circuit.

March 21, 1974.

Jack Wasserman, Benjamin M. Parker, Washington, D. C., Ruben Montemayor, San Antonio, Tex., for petitioner-appellant.

C. J. Calnan, Asst. U. S. Atty., William S. Sessions, U. S. Atty., San Antonio, Tex., Donald H. Feige, Atty., John L. Murphy, Chief, Government Regulations Section, Crim.Div., James P. Morris, Dept. of Justice, Washington, D. C., for respondent-appellee.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

WISDOM, Circuit Judge:

In this tangled case we review the denial of a petition for a writ of habeas corpus to an alien who was refused release on bail pending a final decision in deportation proceedings. A Special Inquiry Officer denied bail to the petitioner, Mamdouh Barbour, an alien, on the ground that he was a bad bail risk. On appeal the Board of Immigration Appeals did not rule on the question whether Barbour was a bad bail risk but, on information submitted by the State Department, denied bail on the ground that Barbour represented a threat to national security. Barbour then petitioned for a writ of habeas corpus in federal court. After reviewing in camera confidential information relating to national security, the district court stated that "for the record" Barbour was not a security risk, but was a bail risk. The court denied the petition for habeas corpus. We agree with the result: detention of this petitioner without bail is lawful.

Barbour is a citizen of Syria, a Major in the Syrian Army. On February 10, 1972, he left Syria, went to Lebanon, then to Turkey, and eventually entered Canada on February 19, 1972. In Canada he deposited approximately $115,000 in four different banks. There, Barbour applied for a non-immigrant visa and was granted permission to enter the United States. In support of his application for the visa, Barbour submitted a fraudulent passport issued by the Imamate of Oman State to Yousef S. Risk, showing that he was a native of Lebanon and a citizen of Jordan. He crossed the border from Canada into the United States on March 4, 1972.

Subsequent to Barbour's entry into this country, the Syrian Government, through Interpol, informed United States' authorities of Barbour's true identity and also of an arrest warrant issued in Syria against him for escape abroad, violation of military instructions, and misappropriation and smuggling of two million Syrian pounds—the equivalent of approximately $450,000. The Immigration and Naturalization Service apprehended Barbour on May 24, 1972, in Arlington, Texas, and began deportation proceedings.

The Syrian Government contends that as vice-head of the finance and administrative department of his army unit Barbour embezzled the funds and, fearing that the theft would be discovered upon his imminent change of assignment, fled the country. Barbour disputes these contentions. He insists that he left Syria with no more than $131,000, most of it inherited from his father, the rest representing the proceeds from his property in Syria. He contends that $115,000 is now frozen by court order in Canadian banks at the instance of Syrian authorities and that he has spent almost all of the remainder. He also contests the Syrian version of the circumstances under which he fled the country. He maintains that he was imprisoned under barbarous conditions for 45 days beginning in 1971 for refusing to give information to a Soviet army officer. Although he was promoted from Captain to Major after this incident, allegedly he was given a dangerous assignment with SAIQA. SAIQA is the Syrian supported military arm of the Palestinian resistance and is said to have connections with world-wide terrorist organizations. Barbour asserts that he tried to resign from the army but that his resignation was not accepted; that he was never involved with SAIQA or in sympathy with that organization, and was assigned to it as a punishment. Finally, Barbour maintains that he is a member of the Druse sect that exists in Syria and Israel, and is persecuted in Syria; that rumors are being spread in Syria that he is pro-Israel and anti-Soviet; that his father was killed for his opposition to the Syrian Government; and that, because like his father he opposes the Government, he fears that if returned to Syria he will be executed for his political beliefs. The Immigration and Naturalization Service takes a skeptical attitude toward Barbour's explanation, because he was promoted to Major after the episode with the Soviet officer and because he sought asylum only after he was arrested. Although the $115,000 in Canada is frozen, there is still $335,000 to be accounted for, assuming the correctness of the Syrian Government's figures.

The procedural history of Barbour's case since he was taken into custody has been a roller coaster ride of motions, denials, and appeals. He has applied for political asylum and sought to have deportation withheld, arguing that if deported to Syria he faces persecution. Twice the Office of Refugee and Immigration Affairs of the State Department has advised that a case for persecution has not been made. Twice a Special Inquiry Officer (now an Immigration Judge) has determined the persecution issue against Barbour and has ordered him deported. The Board of Immigration Appeals has entertained this issue once. According to the record before us, no "final order of deportation" within the meaning of Section 242(c) and (d) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1252(c) & (d), has yet been rendered. See 8 C.F.R. 242.20 (1973) and 8 C.F.R. 243.1 (1973).

Special Inquiry Officers have twice dealt with the issue raised in this case —the legality of continuing Barbour in custody without bail. A custody hearing was held before a Special Inquiry Officer on June 6, 1972. At the close of the hearing the Officer ruled against permitting Barbour to be released on bail:

"I am going to order that the change in custody be denied at this time. The record shows the respondent has used different identities, fraudulent documents. He does not have any close relatives or property in the United States, although it was pointed out that the money that he has in banks might be held in some way, and he would not leave his money, but then of course we do not know at this time how many other banks he might have money in in other countries and what the risk is, and I would hesitate today in setting what I consider to be an intelligent bond in the case for his release under bond. I wouldn\'t know whether to make it a thousand dollars or a hundred thousand, and because of the indication that we will be able to proceed with a prompt hearing and at that time know more concerning all the matters in the case, I am going to order that the request for a change in status be denied."

This custody determination was reconsidered and affirmed on October 5, 1972, by another Special Inquiry Officer, who stated: "There appears to be no justifiable reason for releasing the respondent or making a change in his custody status while the question of his deportability is pending before the Board of Immigration Appeals."

Barbour appealed the October 5 determination to the Board of Immigration Appeals. In the argument before the Board on October 17, 1972, the issue was whether Barbour represented a bail risk. Counsel for the Immigration and Naturalization Service conceded at that time that Barbour did not represent a security risk. On October 27, 1972, while the case was under advisement, the Board received correspondence, including classified information, from the State Department recommending that Barbour not be set free on bail. On the basis of this new information, the Board held on November 24, 1972, that Barbour's release from custody would endanger the national security of the United States. Barbour's appeal was dismissed on this ground which, of course, he had no opportunity to contest and could not anticipate since the argument had centered on whether Barbour was a bail risk. The Board declined to rule on the bail risk issue, stating: "At best it is questionable whether this respondent is a good bail risk or not."

Barbour petitioned for a writ of habeas corpus. The classified national security information on which the Board of Immigration Appeals had based its decision was forwarded to the district court. The district judge viewed the information in camera and found that those documents and the record failed to establish that Barbour represented a security risk. A review of the record as a whole, however, convinced the district court that the evidence upon which the Special Inquiry Officers based their decisions established that Barbour was not a good bail risk. The court considered the following factors in denying bail. (1) Barbour was in the country illegally. (2) He had deceived the American Consul in his application for a non-immigrant visa and had assumed a false name. (3) He had entered the United States surreptitiously and revealed himself as a person "likely to conceal himself within the society". (4) In fact, he had concealed himself within the society. (5) He had no family or roots in the United States. (6) He had no employment record here. (7) He was charged with embezzling more than $450,000 from the Syrian Army, (8) desertion from the Syrian Army, and (9) smuggling money abroad. (10) A substantial amount of cash was unaccounted for which might be used to help Barbour abscond. On these findings the district court concluded that there was substantial evidence to support the Special Inquiry Officers' determination. Accordingly the court denied the writ of habeas corpus.

If the Board had adopted the findings of the Special Inquiry Officers, this Court would have to...