The Third Circuit Court of Appeals filed its opinion in Khouzam v. Attorney General today.
This case involved the pending deportation of petitioner Sameh Khouzam, a Coptic Christian, who sought withholding of removal under Article 3 of the Convention Against Torture (CAT). The CAT basically prevents deporting anyone into a country where they have a likelihood of being tortured (it’s like asylum but you persons with a possibility of being criminals can’t get aslyum).
Khouzam’s primary argument was that because the US was a signatory to the CAT he could not be deported to Egypt because the country has such a poor record of human rights abuses, including torture. So the State Department got diplomatic assurances from Egypt that basically said “we won’t torture Khouzam.” Under the governing statutes, diplomatic assurances are allowed and provide sufficient basis to satisfy the govt’s promises under CAT.
I must disclose the fact that I was working for Judge Smith as a 1L summer intern while this case was being considered but no Chambers discussion, nor inside information, is revealed in this post. I’m pressed for time bc of finals, but it’s worth a read as an important case in the amount of judicial review that is constitutionally permissible/necessary when a person wants to review the content, merits and reliability of a diplomatic assurance.
Intro to the Opinion is provided below:
RENDELL, Circuit Judge.
Sameh Sami S. Khouzam, a citizen of Egypt and a Coptic Christian, challenges the legality of his detention and imminent removal based on diplomatic assurances by Egypt that he would not be tortured if he was returned. In 1998, Khouzam was denied admission to the United States and taken into custody upon arriving without proper documentation. After years of proceedings, Khouzam was granted relief from removal because it was more likely than not that he would be tortured if returned to Egypt. His removal was deferred, rather than withheld, because there were serious reasons to believe that he committed a murder prior to departing Egypt.Khouzam was released from custody in 2006. In 2007, without notice or a hearing, the Department of Homeland Security (“DHS”) again detained Khouzam, and prepared to remove him based on diplomatic assurances by Egypt that he would not be tortured. Khouzam filed an emergency habeas petition in the District Court for the Middle District of Pennsylvania, and a petition for review in this Court, arguing that the DHS’s actions were unlawful. The District Court granted Khouzam’s habeas petition after concluding, in a comprehensive, thoughtful opinion, that Khouzam was denied due process. The Government appeals that ruling.
The arguments before us may be summarized as follows: Khouzam argues that (1) the Government violated certain statutes and the Due Process Clause by failing to provide him a hearing to test the reliability of the diplomatic assurances; (2) diplomatic assurances from Egypt are categorically unreliable; and (3) the Government failed to comply with relevant regulations. The Government argues, in the alternative, that (1) federal courts lack jurisdiction to consider Khouzam’s claims; (2) Khouzam’s claims are non-justiciable; (3) Khouzam received all of the process to which he was entitled; and (4) the Government complied with all relevant regulations.
We will find for Khouzam for the reasons discussed at length below. We will reverse the District Court’s order granting the habeas petition because we disagree with the Court’s conclusion that habeas relief was available. However, we will grant Khouzam’s petition for review because we agree with the District Court that he was denied due process. We will accordingly remand the matter to the Board of Immigration Appeals (“BIA”) for further proceedings consistent with this opinion.
The court finds that habeas jurisdiction has been foreclosed by the REAL ID Act, but they avoid suspension clause problems by finding the jurisdiction to hear the case under a petition for review. A detailed analysis of the political question doctrine finds that it’s not an unreviewable political question.
The Court further finds that he wins a Mathews v. Eldridge due process balancing test, and he’s entitled to due process and a proper hearing with an opportunity to present his case to a neutral adjudicator.
Web Info About the Case
- Pictures of Sameh Khouzam can be found at this blog hosted by his supporters.
- General ACLU Page about Khouzam
Good law review on similar topics –
Katherine R. Hawkins, Note: The Promises of Torturers: Diplomatic Assurances and the Legality of “Rendition” 20 Geo. Immigr. L.J. 213
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