Khouzam v. Atty Gen USA ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-5-2008
Khouzam v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 07-2926
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________
Nos. 07-2926 & 08-1094
_________
SAMEH SAMI S. KHOUZAM,
Petitioner No. 07-2926
v.
ATTORNEY GENERAL OF THE UNITED STATES;
MICHAEL CHERTOFF, SECRETARY
OF DEPARTMENT OF HOMELAND SECURITY;
JULIE MYERS, ASSISTANT SECRETARY OF
HOMELAND SECURITY
_________
SAMEH SAMI S. KHOUZAM,
v.
MICHAEL CHERTOFF, Secretary of Department
of Homeland Security;
THOMAS H. HOGAN, Warden,
Appellants No. 08-1094
_________
_________
On Petition for Review of a Decision
of the Department of Homeland Security
A75-795-693
-and-
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 07-cv-00992)
District Judge: Honorable Thomas I. Vanaskie
__________
Argued June 30, 2008
Before: RENDELL, SMITH, and FISHER, Circuit Judges
(Filed: December 5, 2008 )
Lee Gelernt, Esq. [ARGUED]
Judy Rabinovitz, Esq.
American Civil Liberties Union
Immigrants' Rights Project
125 Broad Street, 18th Floor
New York, NY 10004-2400
2
Amrit Singh, Esq. [ARGUED]
American Civil Liberties Union
125 Broad Street, 18th Floor
New York, NY 10004-0000
Morton H. Sklar, Esq.
World Organization for Human Rights, USA
2029 P Street, N.W.
Washington, DC 20036
Witold J. Walczak, Esq.
American Civil Liberties Union
313 Atwood Street
Pittsburgh, PA 15213-0000
Counsel for Petitioner/Plaintiff-Appellee
Sameh Sami S. Khouzam
Demetrios K. Stratis, Esq.
10-04 River Road
Fairlawn, NJ 07410-0000
Counsel for Amicus Appellee
American Center for Law and Justice;
European Centre for Law and Justice
Baher A. Azmy, Esq.
Seton Hall Law School
Center for Social Justice
833 McCarter Highway
Newark, NJ 07102-0000
Counsel for Amicus Appellee
Scholars of International Human Rights Law
3
Jane M. Ricci, Esq.
Eleanor H. Smith, Esq.
Zuckerman Spaeder
1800 M Street, N.W.
Suite 1000
Washington, DC 20036-0000
Counsel for Amicus Appellee
Organisation Mondiale Contre la Torture
The Redress Trust
Paul R. Taskier, Esq.
Dickstein Shapiro
1825 Eye Street, N.W.
Washington, DC 20006-0000
Counsel for Amicus Appellee
Human Rights Watch;
Amnesty International;
Center for Constitutional Rights;
International Commission of Jurists;
International Federation for Human Rights
Thomas H. Dupree, Jr., Esq. [ARGUED]
United States Department of Justice
950 Pennsylvania Avenue, N.W.
601 D Street, N.W.
Washington, DC 20530-0000
(continued)
4
Douglas E. Ginsburg, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044-0000
Counsel for Defendants/Appellants
Secretary of Department of Homeland Security;
Thomas Hogan
__________
OPINION OF THE COURT
__________
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
5
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
6
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.
I. Background
A. History of the Proceedings
This matter comes to us after proceedings that spanned
a decade. On February 10, 1998, Khouzam boarded a plane in
Egypt bound for New York. While Khouzam was in transit,
Egyptian authorities notified the State Department that he
allegedly committed a murder shortly before leaving the
country. U.S. officials accordingly cancelled Khouzam’s visa,
detained him upon arrival, and initiated removal proceedings
because, with his visa cancelled, Khouzam lacked the requisite
documentation.
The complex proceedings that followed may be
summarized for present purposes. Khouzam sought to avoid
removal by applying for asylum, withholding of removal, and
later for relief under the statutes and regulations implementing
the United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment
(“CAT”). See Sen. Treaty Doc. No. 100-20 (1988), 1465
7
U.N.T.S. 85. In proceedings ultimately concluding in a decision
by the United States Court of Appeals for the Second Circuit in
2004, Khouzam was denied asylum and withholding of removal
based on a determination that there were “serious reasons” to
believe that Khouzam had committed a homicide before leaving
Egypt. Khouzam v. Ashcroft, 361 F.3d 161, 166 (2d Cir. 2004).1
However, the Court also determined that Khouzam was eligible
for relief under CAT based on a finding by the Immigration
Judge (“IJ”) that there was “overwhelming” evidence that
Khouzam would be subjected to torture in Egypt, and a
subsequent determination by the BIA that:
In light of the evidence that the Egyptian
authorities routinely torture and abuse suspected
criminals and the medical evidence indicating that
[Khouzam] has scars and injuries which are
consistent with past torture, . . . we agree with the
Immigration Judge that [Khouzam] has
established that it is more likely than not that he
would be tortured if returned to Egypt.
1
Neither asylum nor withholding of removal may be granted
if “there are serious reasons to believe that the alien committed
a serious nonpolitical crime outside the United States before the
alien arrived in the United States.” 8 U.S.C.
§ 1158(b)(2)(A)(iii); 8 U.S.C. § 1231(b)(3)(B)(iii). Only
deferral of removal may be awarded to such an alien if there is
a likelihood of torture. 8 C.F.R. § 1208.17(a).
8
Id. at 169, 171.2 Because there were serious reasons to believe
Khouzam committed a murder, however, his relief under CAT
was limited to deferral of removal instead of the more
permanent relief of withholding of removal.3
Khouzam subsequently challenged his continuing
confinement through a petition for a writ of habeas corpus filed
in the District of New Jersey, the jurisdiction where he was
detained. On February 6, 2006, after Khouzam had been in
custody for eight years, the Court granted the petition after
concluding that “there was no significant likelihood of
[Khouzam’s] removal in the reasonably foreseeable future.” (JA
190.) As a condition of release, Khouzam was required to report
regularly to a Bureau of Immigration and Customs Enforcement
(“ICE”) facility in York, Pennsylvania, the city where Khouzam
2
The Second Circuit vacated a 2002 decision of the BIA
denying CAT relief upon finding that the BIA applied the wrong
legal standard. In vacating the 2002 decision, the Court let stand
a previous BIA decision of 2000 which affirmed that Khouzam
was eligible for relief under CAT. Khouzam v. Ashcroft,
361 F.3d at 169, 171-72.
3
“Deferral” differs from “withholding” of removal under CAT
in that, in order to terminate withholding of removal, the
Government must satisfy extensive requirements for reopening
immigration proceedings. See 8 C.F.R. §§ 1003.2, 1003.23.
These requirements do not apply when the Government seeks to
terminate a deferral of removal. See 8 C.F.R. § 1208.17(d)(1).
9
intended to reside.
When Khouzam reported to the ICE facility on May 29,
2007, he was retaken into custody and informed that he was
subject to imminent deportation. Khouzam’s counsel received
the following explanation in a letter of the same date from
Julie L. Myers, the DHS Assistant Secretary for the ICE:
Consistent with the procedures set forth at
8 C.F.R. §§ 1208.18(c) and 208.18(c), I have
credited as sufficiently reliable the diplomatic
assurances received by the Department of State
from the Government of Egypt that your client,
Mr. Khouzam, would not be tortured if removed
there. The Secretary of Homeland Security has,
therefore, in accordance with 8 C.F.R.
§§ 1208.17(f) and 208.17(f), terminated
Mr. Khouzam’s deferral of removal to Egypt,
effective January 24, 2007. The Department of
Homeland Security will not remove Mr. Khouzam
to Egypt prior to June 1, 2007.
(JA 52.) The Government provided no prior notice to Khouzam
regarding the diplomatic assurances. Nor did the Government
provide Khouzam any opportunity to review the assurances, or
to present evidence or arguments challenging the assurances
before an IJ, the BIA, or any other body.
10
On May 30, 2007, Khouzam filed an emergency petition
for a writ of habeas corpus and a stay of his removal in the
District Court for the Middle District of Pennsylvania.
Khouzam argued, inter alia, that the Government’s actions
violated the prior order granting CAT relief and deprived him of
his due process rights. Khouzam later added a claim that the
Government failed to comply with the regulatory procedures for
invoking diplomatic assurances. The District Court temporarily
stayed Khouzam’s removal on May 31, 2007. On June 22,
2007, Khouzam filed a motion to compel his release, arguing
that his continued indefinite detention was not justified.
On June 26, 2007, Khouzam also filed a petition for
review in this Court, challenging the termination of his deferral
of removal on grounds similar to those argued in his habeas
petition. We issued an order on December 12, 2007, explaining
that we would delay consideration of Khouzam’s petition for
review until after the District Court ruled on the habeas petition.
We also explained that the cases would be consolidated if either
party appealed the habeas ruling.
On January 10, 2008, the District Court granted
Khouzam’s habeas petition. Khouzam v. Hogan, 529 F. Supp.
2d 543, 571 (M.D. Pa. 2008). As a threshold matter, the Court
determined that it had jurisdiction over the habeas petition
notwithstanding certain statutory provisions that could be
construed to restrict the availability of this relief. The Court
then determined that the DHS violated the Due Process Clause
11
of the Fifth Amendment by failing to afford Khouzam notice
and an opportunity to be heard on the sufficiency of Egypt’s
diplomatic assurances. Id. at 570. The Court vacated the
termination and ordered Khouzam to be released, once again
because there was no significant likelihood that he would be
removed in the reasonably foreseeable future. Id. On
January 14, 2008, both the District Court and this Court denied
motions by the Government to stay Khouzam’s release.
We now have consolidated before us the Government’s
appeal from the District Court’s grant of Khouzam’s habeas
petition, and Khouzam’s petition for review of the DHS’s
decision to terminate his deferral of removal.
B. Relevant Provisions Implementing CAT
At the heart of this case lie certain statutory and
regulatory provisions implementing CAT in the United States,
a treaty which was ratified by the Senate in 1990. S. Exec. Rep.
No. 101-30, at 29-31 (1990). Article 3 of CAT provides,
without exception, that “[n]o State Party shall expel, return
(‘refouler’) or extradite a person to another State where there are
substantial grounds for believing that he would be in danger of
being subjected to torture.” Sen. Treaty Doc. No. 100-20
(1988), 1465 U.N.T.S. 85.4 On October 21, 1998, President
4
The Senate ratified CAT subject to certain reservations,
(continued...)
12
Clinton signed into law the Foreign Affairs Reform and
Restructuring Act of 1998 (“FARRA”), Pub. L. 105-277, div. G,
§ 2242, 112 Stat. 2681, 2681-822 (codified as note to 8 U.S.C.
§ 1231), which was enacted by Congress to give Article 3 of
CAT “wholesale effect” domestically. See Medellin v. Texas,
128 S. Ct. 1346, 1365 (2008).
FARRA establishes that,
It shall be the policy of the United States not to
expel, extradite, or otherwise effect the
involuntary return of any person to a country in
which there are substantial grounds for believing
the person would be in danger of being subjected
to torture, regardless of whether the person is
physically present in the United States.
4
(...continued)
understandings, and declarations. One of the declarations was
that Articles 1 through 16 of CAT are non-self-executing, and
one of the understandings was that the Article 3 phrase “where
there are substantial grounds for believing that [the alien] would
be in danger of being subjected to torture” would be construed
by the United States to mean “it is more likely than not that [the
alien] will be tortured.” S. Exec. Rep. No. 101-30, at 30-31
(1990).
13
FARRA § 2242(a). Congress accordingly required “the heads
of the appropriate agencies” to prescribe implementing
regulations. Id. § 2242(b). Congress also directed that, “[t]o the
maximum extent consistent with the obligations of the United
States under the Convention” the regulations “shall exclude
from the protection of such regulations aliens described in
section 241(b)(3)(B) of the [INA].” Id. § 2242(c). This group
of aliens includes any alien for whom “there are serious reasons
to believe that [he or she] committed a serious nonpolitical
crime outside the United States before [he or she] arrived in the
United States.” INA § 241(b)(3)(B)(iii); 8 U.S.C.
5
§ 1231(b)(3)(B)(iii).
FARRA further provides that “[n]otwithstanding any
other provision of law, and except as provided” in the
implementing regulations themselves, “no court shall have
5
INA § 241(b)(3)(B) also includes (1) any alien who “ordered,
incited, assisted, or otherwise participated in the persecution of
an individual because of the individual’s race, religion,
nationality, membership in a particular social group, or political
opinion;” (2) any alien who “having been convicted by a final
judgment of a particularly serious crime is a danger to the
community of the United States,” and (3) any alien for whom
“there are reasonable grounds to believe that [he or she] is a
danger to the security of the United States.” INA
§ 241(b)(3)(B)(i), (ii), (iv); 8 U.S.C. § 1231(b)(3)(B)(i), (ii),
(iv).
14
jurisdiction to review the regulations adopted to implement” the
provisions of section 2242. FARRA § 2242(d). Congress also
directed that “nothing in [§ 2242] shall be construed as
providing any court jurisdiction to consider or review claims
raised under the [CAT or § 2242], or any other determination
made with respect to the application of the policy [stated in
§ 2242(a)], except as part of the review of a final order of
removal pursuant to section 242 of the [INA].” Id.
The Department of Justice (“DOJ”) accordingly
promulgated regulations that established procedures for raising
a CAT claim. Regulations Concerning the Convention Against
Torture, 64 Fed. Reg. 8478 (Feb. 19, 1999). Under these
regulations an alien is entitled to protection from removal if the
alien can prove “that it is more likely than not that he or she
would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 1208.16(c)(2)-(3).6
Section 1208.18(c) establishes procedures for the use of
diplomatic assurances, and reads in full:
Diplomatic assurances against torture obtained by
the Secretary of State.
6
The regulations implementing FARRA are also codified at
8 C.F.R. pt. 208. For example, 8 C.F.R. § 1208.16 has an
identical counterpart at 8 C.F.R. § 208.16.
15
(1) The Secretary of State may forward to the
Attorney General assurances that the Secretary
has obtained from the government of a specific
country that an alien would not be tortured there
if the alien were removed to that country.
(2) If the Secretary of State forwards assurances
described in paragraph (c)(1) of this section to the
Attorney General for consideration by the
Attorney General or her delegates under this
paragraph, the Attorney General shall determine,
in consultation with the Secretary of State,
whether the assurances are sufficiently reliable to
allow the alien’s removal to that country
consistent with Article 3 of the Convention
Against Torture. The Attorney General’s
authority under this paragraph may be exercised
by the Deputy Attorney General or by the
Commissioner, Immigration and Naturalization
Service,[7] but may not be further delegated.
7
The Homeland Security Act of 2002, Pub. L. No. 107-296,
116 Stat. 2135 (2002), eliminated the Immigration and
Naturalization Service (“INS”) and assigned INS’s enforcement
functions to the DHS’s Bureau of Immigration and Customs
Enforcement (“ICE”). See Kanivets v. Gonzales, 424 F.3d 330,
333 n.1 (3d Cir. 2005). The DHS Assistant Secretary for the
(continued...)
16
(3) Once assurances are provided under paragraph
(c)(2) of this section, the alien’s claim for
protection under the Convention Against Torture
shall not be considered further by an immigration
judge, the Board of Immigration Appeals, or an
asylum officer.
Id. § 1208.18(c). Section 1208.18 provides no limitations on
when diplomatic assurances may be invoked, either in terms of
particular categories of aliens, or the status of an alien’s CAT
claims in the adjudicatory process. It stands apart as a separate
process that may be followed by the Government with respect to
aliens with either ongoing or completed CAT proceedings.
Deferral of removal under CAT is governed by 8 C.F.R.
§ 1208.17. Section 1208.17(a) establishes that aliens meeting
the burden of proof for CAT relief, but ineligible for
withholding of removal based on section 1208.16(d)(2), shall
instead be granted deferral of removal. 8 C.F.R. § 1208.17.
This includes an alien ineligible for withholding of removal
based on a finding that “there are serious reasons to believe that
[the alien] committed a serious nonpolitical crime outside the
United States before [the alien] arrived in the United States.”
INA § 241(b)(3)(B)(iii).
7
(...continued)
ICE is the functional equivalent of the Commissioner of the
now-defunct INS. See 8 C.F.R. §§ 1.1(d), 1001.1(d).
17
Section 1208.17(d) sets forth procedures for terminating
a deferral of removal: “At any time while deferral of removal
is in effect, the [Government] may file a motion with the
Immigration Court . . . to schedule a hearing [before an IJ] to
consider whether deferral of removal should be terminated,” and
the Government’s motion should be granted as long as it is
“accompanied by evidence that is relevant to the possibility that
the alien would be tortured in the country to which removal has
been deferred and that was not presented at the previous
hearing.” 8 C.F.R. § 1208.17(d)(1). The regulation provides for
notice to the alien, an opportunity for the alien to be heard and
to present evidence at the termination hearing, and a right to
appeal to the BIA. The burden remains on the alien to prove
that it is more likely than not that he or she would be tortured if
returned to the proposed country of removal. Id.
§§ 1208.17(d)(2)-(4).
Of particular importance here, section 1208.17(f)
provides for termination on the basis of diplomatic assurances,
and reads in full:
Termination pursuant to § 1208.18(c) [diplomatic
assurances]. At any time while deferral of
removal is in effect, the Attorney General may
determine whether deferral should be terminated
based on diplomatic assurances forwarded by the
Secretary of State pursuant to the procedures in
§ 1208.18(c).
18
Id. § 1208.17(f). Neither this paragraph, nor any provision in
FARRA or the implementing CAT regulations, sets forth any
procedures to be afforded the alien once the Attorney General
makes a determination that a deferral should be terminated
based on diplomatic assurances.
II. Jurisdiction
A. Habeas Jurisdiction
Khouzam’s habeas petition to the District Court
challenged the DHS’s decision to terminate his deferral of
removal on statutory and constitutional grounds. The
Government argued there, as it does here, that Congress
removed habeas jurisdiction from the Court through, inter alia,
the REAL ID Act of 2005. The District Court concluded that it
had jurisdiction under the general habeas authority of 28 U.S.C.
§ 2241, after determining that a contrary interpretation would
cause Suspension Clause problems. Khouzam v. Hogan, 529 F.
Supp. 2d 543, 561 (M.D. Pa. 2008) (citing Khouzam v. Hogan,
497 F. Supp. 2d 615, 623 (M.D. Pa. 2007)). However, we agree
with the Government that Congress spoke with sufficient clarity
in the REAL ID Act to remove habeas jurisdiction over this
matter. While this would ordinarily present a Suspension Clause
problem, we do not reach the issue because, as discussed below,
this Court has alternative jurisdiction to consider Khouzam’s
arguments through his petition for review.
19
We review de novo the District Court’s interpretation of
the statutes applicable to Khouzam’s habeas petition. Gerbier
v. Holmes, 280 F.3d 297, 302 (3d Cir. 2002). The Supreme
Court established in INS v. St. Cyr, 533 U.S. 289 (2001), that
there is a “longstanding rule requiring a clear statement of
congressional intent to repeal habeas jurisdiction.” Id. at 298.
In St. Cyr, the Supreme Court refused to interpret certain
provisions of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”) so as to foreclose any
judicial review of an order of removal. Id. at 311. The Court
concluded that the IIRIRA provisions did not eliminate habeas
jurisdiction because, despite expressly precluding “judicial
review” and “jurisdiction to review,” none of them explicitly
mentioned “habeas corpus” or 28 U.S.C. § 2241. Id. at 314.
The “lack of a clear, unambiguous, and express statement of
congressional intent to preclude judicial consideration on
habeas,” combined with the absence of an alternate judicial
forum, was fatal to the Government’s jurisdictional argument.
Id.
The Government argues here that the REAL ID Act of
2005 clearly and expressly removes habeas jurisdiction. See
REAL ID Act of 2005, Pub. L. 109-13, div. B, § 106(a)(1)(B),
119 Stat. 231, 310 (codified at 8 U.S.C. § 1252(a)(4)). The Act
provides in relevant part:
Notwithstanding any other provision of law
(statutory or nonstatutory), including section 2241
20
of Title 28, or any other habeas corpus provision,
and sections 1361 and 1651 of such title, a
petition for review filed with an appropriate court
of appeals in accordance with this section shall be
the sole and exclusive means for judicial review
of any cause or claim under [CAT] . . . .
8 U.S.C. § 1252(a)(4). The Government further contends that,
because Khouzam’s challenge to the DHS’s termination of his
deferral of removal is a “cause or claim under [CAT],” the
District Court had no jurisdiction to consider it. The District
Court, seeking to avoid constitutional questions, determined that
the jurisdiction-stripping provision did not apply because
Khouzam was challenging a termination decision by the DHS,
rather than an order for removal that could be subject to a
petition for review. Khouzam v. Hogan, 497 F. Supp. 2d at 623.
We disagree with the District Court’s conclusion. In the
REAL ID Act, Congress provided precisely what had been
lacking in the statutory provisions at issue in St. Cyr — a clear
statement within the legislation itself explicitly depriving the
judiciary of habeas jurisdiction. IIRIRA made no reference to
“habeas corpus” or section 2241, while 8 U.S.C § 1252(a)(4)
refers specifically to both. Moreover, the House Conference
Report accompanying the REAL ID Act indicates that section
106 was crafted using St. Cyr as a roadmap. See H.R. Rep.
No. 109-72, at 173-75 (2005) (Conf. Rep.). This is helpful, and
consideration of it is, we believe, permissible in light of
21
Boumediene v. Bush, 128 S. Ct. 2229 (2008). There, the
Supreme Court deemed it appropriate for a court of appeals to
consider legislative history indicating that habeas-stripping
provisions of the Military Commissions Act (“MCA”) were
crafted to foreclose an avenue for review the Court had
previously relied on in Hamdan v. Rumsfeld, 548 U.S. 557
(2006). Id. at 2243. The Court in Boumediene reasoned that the
MCA must be interpreted to deprive habeas jurisdiction if the
“ongoing dialogue between and among the branches of
Government is to be respected.” Id. at 2243-44. We likewise
conclude that 8 U.S.C. § 1252(a)(4) comports with St. Cyr, and
precludes the District Court from exercising jurisdiction over
Khouzam’s habeas petition.8
Khouzam’s habeas petition challenges the Government’s
termination of his deferral of removal based on diplomatic
assurances. The Government prompted Khouzam’s petition by
invoking its diplomatic assurance authority under the CAT
regulations. We find that litigation over the Government’s use
of this CAT authority is appropriately deemed to fall within the
8
As discussed below, we also reach a different conclusion
than the District Court by concluding that the DHS’s decision to
terminate Khouzam’s deferral was a final order of removal, and
thus subject to our jurisdiction through Khouzam’s petition for
review.
22
broad ambit of “any cause or claim under [CAT].” 9 We
therefore conclude that the habeas-stripping provision of section
1252(a)(4) applies to Khouzam’s petition.
Because, as discussed below, Khouzam’s petition for
review affords an alternative avenue for review, we need not
consider whether the provision violates the Suspension Clause.
See U.S. Const. Article I, section 9 (“The privilege of the writ
of habeas corpus shall not be suspended, unless when in cases
of rebellion or invasion the public safety may require it.”)
Accordingly, we conclude that the District Court lacked
jurisdiction to entertain Khouzam’s habeas petition, and will
vacate its order.
9
As we discuss in Note 13 infra, we reach a different
conclusion with regard to 8 C.F.R. § 1208(c)(3), which requires
an IJ, the BIA, or an asylum officer to cease considering an
“alien’s claim for protection under [CAT]” once the
Government proffers diplomatic assurances. (emphasis added).
By challenging the Government’s use of diplomatic assurances,
an alien is not asserting his or her own claim for protection
under CAT, but is instead rebutting the use of a removal tool by
the Government. While we conclude that Khouzam’s habeas
petition falls within “any cause or claim under [CAT],” and thus
within 8 U.S.C. § 1252(a)(4), we also conclude that a challenge
to diplomatic assurances falls outside the narrower scope of an
“alien’s claim for protection” under 8 C.F.R. § 1208(c)(3).
23
B. Jurisdiction Over Khouzam’s Petition for Review
The Government argues that the DHS’s decision to
terminate Khouzam’s deferral of removal is not a final order of
removal, and thus this Court has no jurisdiction to consider that
decision through Khouzam’s petition for review. Alternatively,
the Government argues that the petition for review, even if
permissible, should have been filed in the Court of Appeals for
the D.C. Circuit. Khouzam contends that 8 U.S.C. § 1252
should be interpreted to provide jurisdiction over his petition for
review due to the serious constitutional questions that would
otherwise arise. As the Supreme Court noted in St. Cyr, we
must avoid construing a statute in a manner that “would raise
serious constitutional problems,” if an alternative interpretation
that would avoid such problems is “fairly possible.” 533 U.S.
at 300 (citations and internal quotations omitted). Furthermore,
Khouzam contends that forum selection is non-jurisdictional and
this Court should exercise its discretion to retain the case. We
agree with Khouzam. We conclude that 8 U.S.C. § 1252 can,
and accordingly must, be fairly interpreted to provide
jurisdiction over his petition for review. Furthermore, we agree
that forum selection here is a matter of venue, and that it is
appropriate for us to retain the case under the circumstances.
The Supreme Court has firmly established that a statute
denying an alien the ability to test the legality of the alien’s
detention through a habeas petition is subject to constitutional
scrutiny, and, upon failing such scrutiny, may be invalidated as
24
an unconstitutional suspension of the writ. See Boumediene,
128 S. Ct. at 2262, 2274. The Supreme Court further instructs
us that the Suspension Clause is not implicated so long as
Congress provides an “adequate and effective” alternative to
habeas review. Swain v. Pressley, 430 U.S. 372, 381 (1977);
accord Boumediene, 128 S. Ct. at 2262; St. Cyr, 533 U.S. at 314
n.38. Without question, serious constitutional questions would
be raised if Khouzam were afforded no alternative to the habeas
review denied by 8 U.S.C. § 1252(a)(4).
We have held that “there is no question” that a petition
for review with a court of appeals, under the current statutory
regime, provides an alien an adequate substitute to habeas
review. Kolkevich v. Att’y Gen., 501 F.3d 323, 332 (3d Cir.
2007). Other courts of appeal have reached the same
conclusion. See, e.g., Singh v. Mukasey, 533 F.3d 1103,
1106-08 (9th Cir. 2008); Ruiz-Martinez v. Mukasey, 516 F.3d
102, 114 (2d Cir. 2008); Mohamed v. Gonzales, 477 F.3d 522,
526 (8th Cir. 2007); Alexandre v. U.S. Att’y Gen., 452 F.3d
1204, 1206 (11th Cir. 2006). Therefore, so long as it is “fairly
possible” for us to conclude that we have jurisdiction over
Khouzam’s petition for review, we will do so to avoid the
serious constitutional questions that would be raised if Khouzam
lacked any judicial forum in which to challenge his removal.
We find no tension between this interpretive approach
and the legislative history of the habeas-stripping provision.
The House Conference Report that accompanied the REAL ID
25
Act plainly states that the Act “does not eliminate judicial
review.” H.R. Rep. No. 109-72, at 174. Rather, “the overall
effect of the proposed reforms is to give every alien a fair
opportunity to obtain judicial review while restoring order and
common sense to the judicial review process.” Id. at 175. The
Report indicates that Congress was fully aware of the
constitutional pitfalls of stripping habeas jurisdiction, and
sought to avoid them entirely in crafting the provision codified
in 8 U.S.C. § 1252(a)(4):
[S]ection 106 would give every alien one day in
the court of appeals, satisfying constitutional
concerns. The Supreme Court has held that in
supplanting the writ of habeas corpus with an
alternative scheme, Congress need only provide a
scheme which is an “adequate and effective”
substitute for habeas corpus. See Swain v.
Pressley, 430 U.S. 372, 381 (1977). Indeed, in
St. Cyr itself, the Supreme Court recognized that
“C ongress could, w ithout raising any
constitutional questions, provide an adequate
substitute through the courts of appeals.” St. Cyr,
533 U.S. at 314 n.38 (emphasis added). By
placing all review in the courts of appeals, [the
REAL ID Act] would provide an “adequate and
effective” alternative to habeas corpus.
26
Id. Since section 1252(a)(4) provides that a petition for review
under section 1252 is the exclusive alternative to habeas review,
our task is to determine whether we have jurisdiction to
entertain Khouzam’s petition under that authority.
We have previously held that section 1252 only confers
jurisdiction on us to review “final orders of removal.” Obale v.
Att’y Gen., 453 F.3d 151, 158 & n.6 (3d Cir. 2006) (synthesizing
the relevant subsections of 8 U.S.C. § 1252); see 8 U.S.C.
§§ 1252(a)(1), (b). We must therefore decide whether it is fairly
possible for us to determine that the DHS’s decision to terminate
Kouzam’s deferral of removal is a final order of removal. This
inquiry requires us to consider first whether the decision was an
order of removal, and, if so, whether that order was final.
Congress did not provide a definition for an “order of
removal.” Congress did, however, supply a definition for “order
of deportation.” See 8 U.S.C. 1101(a)(47)(A). In other
contexts, this circuit and others have used the terms
“deportation” and “deportable” interchangeably with the terms
“removal” and “removable.” See Kolkevich, 501 F.3d at 326
n.2; Obale, 453 F.3d at 160; Viracha v. Mukasey, 518 F.3d 511,
513-14 (2d Cir. 2008); Lolong v. Gonzales, 484 F.3d 1173, 1177
n.2 (9th Cir. 2007); Sosa-Valenzuela v. Gonzales, 483 F.3d
1140, 1144 n.5 (10th Cir. 2007). By substituting the respective
terms into the statutory definition of an “order of deportation,”
we have previously deemed an “order of removal” to be an
“order
27
. . . concluding that the alien is [removable] or ordering
[removal].” 8 U.S.C. § 1101(a)(47); Obale, 452 F.3d at 160.
Seeing no reason to reconsider this approach here, we
apply the definition to the DHS’s decision. On February 24,
2004, the United States Court of Appeals for the Second Circuit
issued a ruling by which Khouzam was granted deferral of
removal. With that deferral in effect, the Government had no
authority to remove Khouzam to Egypt. The DHS subsequently
informed Khouzam on May 29, 2007 that, on the basis of
diplomatic assurances from Egypt, it decided to terminate the
deferral of removal and that Khouzam was accordingly subject
to imminent removal. Moreover, a declaration by the ICE dated
May 30, 2007, indicates that the ICE “arrested and detained
Mr. Khouzam on May 29, 2007, in preparation for enforcing
Mr. Khouzam’s final order of removal.” (JA 283.) Thus, the
decision of the DHS to terminate Khouzam’s deferral of
removal made him eligible for, and apparently subject to,
imminent removal to Egypt. We therefore conclude that the
DHS’s decision was an “order of removal” under section 1252.
The Government asserts that the BIA’s order of March 7,
2002 denying Khouzam’s applications for asylum and
withholding of removal is an order of removal that will remain
in effect regardless of any ruling on deferral. While this
observation may well be correct, it has no bearing on whether
the DHS’s termination of deferral may also qualify as an order
of removal. We find nothing to suggest that an alien may be
28
subject to only one order of removal at a time. Furthermore, we
see no reason why a termination of CAT relief should be treated
any differently for jurisdictional purposes from an initial denial
of CAT relief, which we regularly review as an order of
removal. See, e.g., Pierre v. Att’y Gen., 528 F.3d 180 (3d Cir.
2008) (en banc). Our reasoning is in accord with the Second
Circuit’s recent ruling in Ali v. Mukasey, 529 F.3d 478 (2d Cir.
2008), where the court vacated a termination of deferral of
removal without raising any distinction between the denial of
CAT relief and the termination of deferral as to CAT relief. Id.
at 488.
The Government also contends that Khouzam challenged
his March 7, 2002 order of removal before the Second Circuit
and, under Bonhometre v. Gonzales, 414 F.3d 442 (3d Cir.
2005), aliens are limited “to one bite of the apple with regard to
challenging an order of removal.” Id. at 446. The problem with
this argument is that the DHS handed Khouzam a new apple
when it decided to terminate his deferral of removal. The DHS
decision at issue here is a new order for removal that has never
been the subject of a petition for review.
Having determined that the DHS’s decision was an order
of removal, we next consider whether it is fairly possible to
conclude that the order was “final.” Congress provided no
statutory definition to establish when an order for removal
becomes “final.” Here, the substitution of “removal” for
“deportation” into existing statutory definitions is less helpful.
29
Congress provided that an order for “deportation”
shall become final upon the earlier of-
(i) a determination by the [BIA] affirming such
order; or
(ii) the expiration of the period in which the alien
is permitted to seek review of such order by the
[BIA].
8 U.S.C. § 1101(a)(47)(B). The BIA never ruled on the DHS
decision, nor was Khouzam afforded any opportunity to raise the
matter before any adjudicative body. Indeed, this is a central
concern raised by Khouzam in his substantive arguments.
While we found the deportation definition to be helpful
above, it does not restrict us. First, even if “removal” were
identical in meaning to “deportation” under the statute, the
definition does not expressly exclude other triggers for finality.
Moreover, it appears that Congress did not intend an order of
deportation to be wholly synonymous with an order of removal,
but rather that orders for deportation are a subset of orders for
removal. For instance, section 309(d)(2) of the IIRIRA provides
that “[f]or purposes of carrying out the [INA] . . . any reference
in law to an order for removal shall be deemed to include a
reference to an order of exclusion and deportation or an order of
deportation.” Pub. L. 104-208, 110 Stat. 3009 (1996) (emphasis
30
added). Thus, the definition for finality of deportation orders
does not control our analysis of the finality of an order of
removal.10
Lacking a statutory definition, we can nonetheless easily
determine that the DHS’s order of removal was “final” through
a common sense application of the term’s plain meaning. The
Government itself claims that Khouzam was subject to imminent
removal once the DHS decided to terminate the deferral of
removal. Thus, the Government argues that the DHS’s
termination decision was final under the relevant statutory
scheme. Moreover, we again note that the ICE itself stated that
it “arrested and detained Mr. Khouzam . . . in preparation for
enforcing Mr. Khouzam’s final order of removal.” (JA 283.)
Clearly, Khouzam was going to be removed, and that was final.
We therefore conclude that the DHS’s decision to terminate
Khouzam’s deferral of removal was effectively a final order of
removal, and thus subject to our review under section 1252.
10
Neither is our analysis controlled by the regulatory
definition of finality for “[a]n order of removal made by [an]
immigration judge” provided in 8 C.F.R. § 1241.1. This
definition is inapplicable because no IJ passed on the order for
removal at issue in the instant case. Nothing in this regulation
establishes that an immigration judge must be the exclusive
source for an order of removal.
31
The Government argues that, even if the DHS decision
could be raised in a petition for review, we lack jurisdiction
because a “petition for review shall be filed with the court of
appeals for the judicial circuit in which the immigration judge
completed the proceedings.” 8 U.S.C. § 1252(b)(2). The
Government notes that no IJ conducted any proceedings in our
judicial circuit. In fact, as Khouzam argues, no IJ in any circuit
even participated in the decision to terminate removal.
However, section 1252(b)(2) is a non-jurisdictional venue
provision. Bonhometre, 414 F.3d at 446 (citing Nwaokolo v.
INS, 314 F.3d 303, 306 n.2 (7th Cir. 2002)). In Bonhometre, we
exercised jurisdiction over petitions for review despite the fact
that proceedings occurred within the First Circuit’s jurisdiction.
Id. We explained that, “given that this case has been thoroughly
briefed and argued before us, and given that [the alien] has
waited a long time for the resolution of his claims, we believe it
would be a manifest injustice to now transfer this case to
another court for duplicative proceedings.” Id. For the reasons
stated in Bonhometre, and the possible lack of any alternative
forum, we retain Khouzam’s petition for review.
III. Justiciability
Next, the Government contends that the lawfulness of the
DHS’s termination of Khouzam’s deferral of removal based on
diplomatic assurances is a non-justiciable issue. The
Government contends that we must refrain from deciding the
matter under the political question doctrine and the rule of
32
non-inquiry. For the reasons discussed below, we reject the
Government’s arguments.
A. Political Question Doctrine
The Government urges that we must refrain from
exercising jurisdiction under the political question doctrine,
predominantly because of the Executive’s unique role in foreign
relations. We disagree. According to the Supreme Court, “[t]he
political question doctrine excludes from judicial review those
controversies which revolve around policy choices and value
determinations constitutionally committed for resolution to the
halls of Congress or the confines of the Executive Branch.”
Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230
(1986). Recognizing the potential for the overzealous
application of this doctrine, the Court has admonished us to
remain cognizant of the fact that the concern is with “‘political
questions,’ not . . . ‘political cases.’” Baker v. Carr, 369 U.S.
186, 217 (1962) (emphasis added); see also id. at 210-11
(“Much confusion results from the capacity of the ‘political
question label to obscure the need for case-by-case inquiry.”);
Harbury v. Hayden, 522 F.3d 413, 418 (D.C. Cir. 2008) (“[T]he
doctrine is notorious for its imprecision, and the Supreme Court
has relied on it only occasionally.”).
33
Accordingly, the fact that the resolution of the merits of
a case would have “significant political overtones does not
automatically invoke the political question doctrine.” INS v.
Chadha, 462 U.S. 919, 942-43 (1983); accord Japan Whaling,
478 U.S. at 230. Although the Executive and Legislative
Branches bear primary responsibility for the conduct of foreign
affairs, “it is error to suppose that every case or controversy
which touches foreign relations lies beyond judicial
cognizance.” Baker, 369 U.S. at 211; accord Japan Whaling,
478 U.S. at 230. Thus,“a predicted negative impact on foreign
relations does not, by itself, render a case nonjusticiable under
the political question doctrine.” Gross v. German Found. Indus.
Initiative, 456 F.3d 363, 377 (3d Cir. 2006).
The Supreme Court in Baker identified six independently
sufficient factors for determining whether a case involves a
nonjusticiable political question:
Prominent on the surface of any case held to
involve a political question is found [1] a
textually demonstrable constitutional commitment
of the issue to a coordinate political department;
[2] or a lack of judicially discoverable and
manageable standards for resolving it; [3] or the
impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial
discretion; [4] or the impossibility of a court’s
undertaking independent resolution without
34
expressing lack of the respect due coordinate
branches of government; [5] or an unusual need
for unquestioning adherence to a political
decision already made; [6] or the potentiality of
embarrassment from multifarious
pronouncements by various departments on one
question.
369 U.S. at 217. A factor must not only be present, but must
also be “inextricable from the case at bar.” Baker, 369 U.S. at
217. Thus, our analysis must turn not on “semantic cataloguing”
but, rather, on a “discriminating inquiry into the precise facts
and posture of the particular case.” Id.
We apply Baker with particular caution when asked to
abstain in cases where individual liberty hangs in the balance.
See, e.g., Kadic v. Karadzic, 70 F.3d 232, 249 (2d Cir. 1995)
(“[J]udges should not reflexively invoke [the political question
doctrine] to avoid difficult and somewhat sensitive decisions in
the context of human rights.”); United States v. Decker, 600
F.2d 733, 738 (9th Cir. 1979) (“We are less inclined to withhold
review [based on the political question doctrine] when
individual liberty, rather than economic interest, is implicated”).
This is because “[w]hatever power the United States
Constitution envisions for the Executive in its exchanges with
other nations . . . , it most assuredly envisions a role for all three
branches when individual liberties are at stake.” Hamdi v.
35
Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion).11
The first Baker factor asks whether there is “a textually
demonstrable constitutional commitment of the issue to a
coordinate political department.” Baker, 369 U.S. at 217. The
Government maintains that there is such a commitment here due
to the broad constitutional authority of the Executive Branch
over foreign affairs and, relatedly, over immigration. But the
mere fact that foreign affairs may be affected by a judicial
decision does not implicate abstention. See, e.g., Japan
Whaling, 478 U.S. at 229-30 (exercising jurisdiction over a
claim that the Secretary of Commerce violated a federal statute
in declining to initiate sanctions against Japan for exceeding
treaty-based whaling quotas); Haig v. Agee, 453 U.S. 280, 282,
292-310 (1981) (exercising jurisdiction over the question of
whether the Executive had authority to revoke a passport where
the holder’s activities abroad allegedly threatened national
security and foreign policy); INS v. Aguirre-Aguirre, 526 U.S.
415, 423-32 (1999) (exercising jurisdiction over a challenge to
a determination by the BIA that a crime committed by an alien
was “non-political” in nature under the INA). The Government
does not identify, nor do we find, any basis to conclude that the
11
We note that the Supreme Court reached the merits in every
case cited by the Government except for Chicago & Southern
Air Lines v. Waterman S.S. Corp. Civil Aeronautics Board, 333
U.S. 103 (1948), a case that predated Baker and did not
implicate individual liberty.
36
Constitution commits to the Executive the authority to determine
whether the removal of a particular alien comports with
immigration statutes and regulations. Accordingly, the first
Baker factor is not implicated.
The second factor asks whether there is “a lack of
judicially discoverable and manageable standards for resolving”
any of the issues in the case. Baker, at 217. As we explained in
Gross, “[e]ven where significant foreign policy concerns are
implicated, a case does not present a political question under this
factor so long as it involves normal principles of interpretation
of the constitutional provisions at issue, normal principles of
statutory construction, or normal principles of treaty or
executive agreement construction.” 456 F.3d at 388 (citations
and internal quotation marks omitted). We see no reason not to
include normal principles of regulatory construction in this list.
We accordingly look to Khouzam’s substantive claims to
assess whether any of them cannot be resolved through
judicially discoverable and manageable standards. First,
Khouzam maintains that returning him to Egypt could never
comport with the CAT protections of FARRA, regardless of any
diplomatic assurances. Second, he contends that terminating his
deferral of removal based on diplomatic assurances, without
notice and a hearing, violated the Due Process Clause of the
Fifth Amendment. Finally, Khouzam asserts that the
Government failed to follow the regulatory procedures
pertaining to diplomatic assurances. These three claims are
37
fundamentally matters of statutory, constitutional, and regulatory
interpretation respectively, and are accordingly legal, rather than
political, standards. See Gross, 456 F.3d at 389.
The Government argues that there are no judicially
manageable standards for the Judiciary to “competently assess
the nature of the relationship between Egypt and the United
States to determine whether this country can trust Egypt’s
diplomatic commitment.” (Govt’s Br. 29.) Khouzam’s second
and third arguments directly implicate due process and
regulatory standards, and do not place the reliability of Egypt’s
assurances before us. To the extent that the reliability of
assurances may be raised by Khouzam’s FARRA argument, we
do not find the second Baker factor to be implicated. As the
Government concedes, a variety of considerations could inform
whether particular assurances are sufficient to allow the United
States to return an alien without violating FARRA. These
include whether the terms of the assurances would satisfy
FARRA; whether the assurances were given in good faith; the
country’s record of torture; the country’s record of complying
with previous assurances; whether there will be a mechanism to
verify compliance with the assurances; the identity and position
of the official relaying the assurances; and the incentives and
capacity of the country to comply with the assurances. While
some of these considerations may lack judicially discoverable
and manageable standards, that is certainly not the case for all
of them.
38
The third factor requires us to determine whether it would
be impossible for a court to decide the case “without an initial
policy determination of a kind clearly for nonjudicial
discretion.” Baker, 369 U.S. at 217. The Government contends
that it would be impossible to do so here because “[t]he United
States made a policy determination to approach Egypt to obtain
its commitment with respect to Khouzam’s treatment.” (Govt’s
Br. 35.) This observation is beside the point. The
Government’s decision to seek diplomatic assurances is not at
issue, but rather whether the Government complied with
constitutional, statutory, and regulatory constraints in employing
diplomatic assurances to remove Mr. Khouzam. Thus, the third
Baker factor is not implicated.
The fourth Baker factor asks whether it would be
impossible for a court to “undertak[e] independent resolution [of
the matter] without expressing lack of the respect due coordinate
branches of government.” Baker, 369 at 217. The Government
argues: (1) in section 2242(c) of FARRA, Congress directed the
Executive Branch to enact regulations that exclude the aliens
described in section 241(b)(3)(B) of INA — serious criminals,
persecutors, and national security risks — from protection from
removal to the maximum extent possible under CAT;
(2) pursuant to this mandate, the Executive established a process
that is “carefully crafted and narrowly tailored to deal with the
most dangerous aliens,” allowing for the termination of
previously granted CAT relief based on diplomatic assurances;
and (3) therefore, “[j]udicial jettisoning of this process would
39
show a lack of respect to the political branches.” (Govt’s Br.
36.)
This argument is flawed for at least three reasons. First,
the regulations do not expressly limit the use of diplomatic
assurances to situations involving section 241(b)(3)(B) aliens.
See 8 C.F.R. § 1208.18(c). Second, we find nothing in the
regulations that expressly excludes the judiciary from
participating in the termination of CAT relief on the basis of
diplomatic assurances. Finally, although a judicial finding that
the Executive violated a constitutional, statutory, or regulatory
provision “might in some sense be said to entail a ‘lack of
respect’ for [the Executive’s] judgment . . . [,] disrespect, in the
sense the Government uses the term, cannot be sufficient to
create a political question.” United States v. Munoz-Flores, 495
U.S. 385, 390 (1990). Otherwise, every challenge to the
legality of Executive action would be non-justiciable. In Powell
v. McCormack, 395 U.S. 486 (1969), the Supreme Court
cautioned:
Our system of government requires that federal
courts on occasion interpret the Constitution in a
manner at variance with the construction given
the document by another branch. The alleged
conflict that such an adjudication may cause
cannot justify the courts’ avoiding their
constitutional responsibility.
40
Id. at 549. We find that the same holds true with respect to
statutes and regulations. Accordingly, we conclude that the
fourth Baker factor does not pose a barrier to our exercise of
jurisdiction.
Under the fifth Baker factor, a political question is
present where there is “an unusual need for unquestioning
adherence to a political decision already made.” Baker,
369 U.S. at 217. The Government maintains that this is the case
here because “the highest level of the Executive Branch decided
to credit confidential diplomatic communications from a
sovereign involving such a dangerous alien.” (Govt’s Br. at 36.)
However, even if the decision to credit Egypt’s assurances could
be classified as a political decision, the Government has not
identified any unusual need for unquestioning adherence to that
decision. As we explained in Gross, “Baker makes clear [that]
the fifth factor contemplates cases of an ‘emergency[] nature’
that require ‘finality in the political determination,’ such as the
cessation of armed conflict.” 456 F.3d at 390 (quoting Baker,
369 U.S. at 213) (second alteration in Gross). We see no
comparable urgent need for finality here.
Finally, the sixth Baker factor asks whether exercising
jurisdiction would present “the potentiality of embarrassment
from multifarious pronouncements by various departments on
one question.” Baker, 369 U.S. at 217. The Government argues
that such embarrassment would result if a court were to block
Khouzam’s removal contrary to a promise made by the
41
Executive to Egypt. The Supreme Court rejected a virtually
identical argument in Japan Whaling. 478 U.S. at 229-30.
There, conservation groups argued that certain statutes required
the Secretary of Commerce to “certify” Japan for harvesting
whales in violation of an international convention, where
certification would have triggered automatic sanctions. Id. at
223, 226. After negotiations with Japan, the Secretary agreed
not to certify Japan in return for a promise to meet certain
harvesting limits in the future. Id. at 227-28. The Court
considered the merits of the case, notwithstanding an argument
that there was a risk of “multifarious pronouncements” under
Baker. Id. at 229-30. The Court concluded that “one of the
Judiciary’s characteristic roles is to interpret statutes, and we
cannot shirk this responsibility merely because our decision may
have significant political overtones.” Id. at 230. If the sixth
Baker factor was not implicated in Japan Whaling, we do not
see how it could be implicated here. This conclusion makes
practical sense since the Executive could otherwise foreclose
judicial review in various matters merely by making promises to
other nations.
Therefore, with none of the six Baker factors present, the
political question doctrine does not preclude us from exercising
jurisdiction.
42
B. The Rule of Non-Inquiry
The Government also argues that this case is non-
justiciable under the so-called “rule of non-inquiry.” When it
applies, this doctrine bars courts from evaluating the fairness
and humaneness of another country’s criminal justice system,
requiring deference to the Executive Branch on such matters.
See Hoxha v. Levi, 465 F.3d 554, 563 (3d Cir. 2006). However,
it has traditionally been applied only in the extradition context.
See, e.g., Mironescu v. Costner, 480 F.3d 664, 668-70 (4th Cir.
2007); Prasoprat v. Benov, 421 F.3d 1009, 1016 (9th Cir. 2005);
Hoxha, 465 F.3d at 563; United States v. Kin-Hong, 110 F.3d
103, 111 (1st Cir. 1997); In re Smyth, 61 F.3d 711, 714 (9th Cir.
1995); In re Howard, 996 F.2d 1320, 1329 & n.6 (1st Cir.
1993); In re Manzi, 888 F.2d 204, 206 (1st Cir. 1989). In fact,
we routinely evaluate the justice systems of other nations in
adjudicating petitions for review of removal orders. See, e.g.,
Pierre, 528 F.3d at 186-90; Auguste v. Ridge, 395 F.3d 123,
129, 152-54 (3d Cir. 2005); Chang v. INS, 119 F.3d 1055,
1060-68 (3d Cir. 1997). The Second Circuit did as much in
2004 when it found that Khouzam was likely to be arrested and
tortured if removed to Egypt. Khouzam v. Ashcroft, 361 F.3d at
171. Furthermore, we have expressly reserved the possibility
that, even in the extradition context, the rule of non-inquiry
would not apply if an alien raises a CAT claim. Hoxha, 465
F.3d at 564-65. The Fourth Circuit has held that it does not.
Mironescu, 480 F.3d at 670-73.
43
Without referring to the doctrine by name, the Supreme
Court arguably extended the rule of non-inquiry beyond the
extradition context in Munaf v. Geren, 128 S. Ct. 2207 (2008).
However, Munaf involved the unusual circumstance of two
American citizens being held by U.S. forces in Iraq, pursuant to
security agreements with the Iraqi government, for allegedly
violating Iraqi law. Id. at 2213-15. The Supreme Court found
that, although habeas jurisdiction did lie, it was inappropriate to
exercise that jurisdiction. Id. at 2213. The Court refused to
consider whether the petitioners would face torture if turned
over to Iraqi authorities, explaining that such an inquiry would
“undermine the Government’s ability to speak with one voice.”
Id. at 2226. However, the Court also noted that the petitioners
had not properly raised a claim for relief under CAT, and
expressed no opinion as to the result had the petitioners done so.
Id. at 2226 & n.6. Given the highly unusual factual scenario
presented, and that the Court expressly distinguished claims
under CAT, we find that Munaf does not control here. We
therefore conclude that the rule of non-inquiry is inapplicable to
the present matter and does not bar the exercise of our
jurisdiction over Khouzam’s petition for review.
IV. Legality of the DHS’s Termination of Khouzam’s
Deferral of Removal
A. Categorical Insufficiency
Khouzam argues that no diplomatic assurance from
44
Egypt could ever be sufficient to allow the Government to return
him there under FARRA. First, he contends that returning an
alien to any country that, like Egypt, has a record of consistently
engaging in torture, would be a per se violation of FARRA.
Second, Khouzam contends that, even if we were to find that an
egregious human rights record is not dispositive, additional
considerations in this case make any diplomatic assurances
inherently insufficient to permit removal to Egypt. In particular,
Khouzam asserts that Egypt failed to comply with prior
assurances, that certain systemic barriers preclude post-return
monitoring, that Khouzam had previously been tortured, and that
he is at particular risk as a Coptic Christian.
We construe Khouzam’s argument as an argument that
the regulations must be interpreted under FARRA to preclude
individualized determinations in his fact pattern. This argument
must fail. Congress left it to responsible agencies to implement
the obligations of the United States under CAT. FARRA
§ 2242(b). Khouzam offers no argument that the regulations
prescribed by the DOJ were improperly promulgated or are
being arbitrarily enforced. We must accept an agency’s efforts
to fill in statutory gaps left by Congress unless we find them
unreasonable. See Nat’l Cable & Telecomm. Assocs. v. Brand
X Internet Servs., 545 U.S. 967, 980 (2005) (citing Chevron
U.S.A. v. National Resources Defense Council, Inc., 467 U.S.
837, 843-44 & n.11 (1984)). We do not find it unreasonable for
the DOJ to create a procedure for making an individualized
determination, in every case, as to whether particular diplomatic
45
assurances are sufficient to permit removal under FARRA. If,
in fact, a particular country under consideration has an egregious
record of torture, the regulations would require the Government
to take such factors into account. Thus, we reject Khouzam’s
argument that the diplomatic assurances from Egypt are
categorically insufficient under FARRA and its implementing
regulations.
B. Fifth Amendment Due Process
Khouzam contends that we must interpret FARRA as
requiring notice and a hearing prior to his removal in order to
avoid serious constitutional questions that would otherwise
arise. To the extent that the implementing regulations may
conflict with this interpretation of FARRA, Khouzam argues,
the statute must control. In the alternative, Khouzam contends
that removal without notice and a hearing violates his right to
due process under the Fifth Amendment. The Government
counters that, inter alia, FARRA and its implementing
regulations preclude any such process and, in any event, the
Government accorded Khouzam all process he was due.
FARRA does not contain a provision for removal based
on diplomatic assurances, and does not address what level of
process is due to someone in Khouzam’s position. Indeed, we
find no provision in the relevant portion of the statute that even
refers to the process to be afforded an alien. See FARRA
§ 2242. Rather, Congress left the specific issue of CAT
46
procedures to the Executive Branch by way of the authority to
regulate. FARRA directed the Executive to “prescribe
regulations to implement the obligation of the United States
under Article 3 of [CAT].” FARRA § 2242(b). As is discussed
above, the regulations adopted to implement FARRA set forth
elaborate notice and hearing procedures for termination of
deferral of removal in general cases. 8 C.F.R. § 1208.17(d).
However, the terse portion of the regulation addressing
termination on the basis of diplomatic assurances is silent with
regard to what process, if any, is to be afforded the alien. Id.
§ 1208.17(f). There is nothing in the diplomatic assurance
regulations themselves that we could fairly construe as
providing an alien with any process whatsoever, let alone the
right to a hearing. Id. §1208.18(c).
While the statute and regulations do not require a specific
procedure whereby Khouzam could challenge the diplomatic
assurances, through notice and an opportunity to test their
reliability at a hearing, neither do they specifically preclude such
a procedure.12 The Government urges that affording procedures
12
Section 1208.18(c) describes how the Secretary of State may
secure diplomatic assurances and forward them to the Attorney
General for consideration as to whether the assurances are
sufficiently reliable to allow an alien’s removal. But this
provision does not establish any procedures for the Attorney
General, or the Attorney General’s delegate, to use in making
(continued...)
47
to test diplomatic assurances would conflict with 8 C.F.R.
§ 1208.18(c)(3). That regulation provides: “Once [diplomatic]
assurances are provided . . . the alien’s claim for protection
under [CAT] shall not be considered further by an [IJ], the
[BIA], or an asylum officer.” However, we do not agree with
the Government that this regulation conflicts with affording
Khouzam procedures to test the diplomatic assurances.
By its terms, section 1208.18(c)(3) precludes an IJ, the
BIA, or an asylum officer from “further” considering “the
alien’s claim for protection under [CAT]” once diplomatic
assurances are proffered by the Government. Id. (emphasis
added). We read this language only as requiring that any
proceedings then underway must cease when the Government
offers diplomatic assurances before an alien’s substantive CAT
claim has been resolved. Here, Khouzam’s claim for protection
under CAT was resolved by the Second Circuit before the
Government proffered diplomatic assurances. The regulation
does not refer to proceedings to test diplomatic assurances
because such proceedings would not involve the “alien’s claim
12
(...continued)
this decision. Section 1208.17(f) is entitled, “Termination [of
deferral or removal] pursuant to § 1208.18(c),” and provides that
the Attorney General “may determine whether deferral should
be terminated based on diplomatic assurances.” 8 C.F.R.
1208.17(f). This provision likewise establishes no procedures
for the actual termination itself.
48
for protection.” Such proceedings would instead involve the
Government’s claim that diplomatic assurances are sufficiently
reliable to justify removal, notwithstanding any likelihood of
torture previously proven by the alien. Here, Khouzam seeks to
challenge the use of a removal tool by the Government.
Accordingly, neither the Government’s assertion of diplomatic
assurances, nor Khouzam’s challenge to those assurances, fall
within the purview of section 1208.18(c)(3).13
Finding no statutory or regulatory provision that either
affords or prohibits procedures to challenge diplomatic
assurances, we next consider whether Khouzam was entitled to
process. The Government, citing Shaughnessy v. United States
13
In considering the habeas-stripping provision of 8 U.S.C.
§ 1252(a)(4) above, we found that Khouzam’s habeas petition
fell within the statutory scope of “any cause or claim under
[CAT].” See Note 9 supra. While we recognize that the term
“claim” is used in both 8 U.S.C. § 1252(a)(4) and 8 C.F.R.
§ 1208.18(c)(3), our interpretations of the two provisions are
compatible. Section 1252(a)(4) applies broadly to “any cause or
claim under CAT,” while section 1208.18(c)(3) applies more
narrowly to an “aliens’s claim for protection under [CAT].”
(emphasis added). We see no conflict in finding that
proceedings to challenge diplomatic assurances fall within the
broad category of “any cause or claim” under CAT, but do not
fall within the narrower scope of further consideration of the
“alien’s claim for protection under [CAT].”
49
ex rel. Mezei, 345 U.S. 206 (1953), and United States ex rel.
Knauff v. Shaughnessy, 338 U.S. 537 (1950), argues that
Khouzam is entitled to no process because he was intercepted
prior to entry. Mezei established the “entry fiction” whereby an
alien intercepted “on the threshold of initial entry,” though
physically present in the United States, stands on a “different
footing” for due process purposes than an alien who has “passed
through our gates.” Mezei, 345 U.S. at 212. Knauff upheld
regulations affording the Attorney General special powers to
exclude aliens only during war or the existence of a specific
national emergency proclaimed in May of 1941. Knauff, 338
U.S. at 544-45.
Neither case is applicable here. One dispositive
difference is that Khouzam, unlike the aliens in Mezei and
Knauff, has already been granted statutory relief from removal.
Moreover, we have repeatedly held that aliens detained
immediately upon arrival without proper documentation are
entitled to due process of law during deportation proceedings
implicating statutory relief from removal. Dia v. Ashcroft, 353
F.3d 228, 238-39, 246-47 (3d Cir. 2003) (en banc);
Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir. 2003);
Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003);
Abdulai v. Ashcroft, 239 F.3d 543, 549 (3d Cir. 2001).
In fact, the basic dictates of due process must be met
whether an alien facing removal overstayed a visa, Borges v.
Gonzales, 402 F.3d 398, 401, 408 (3d Cir. 2005), Fadiga v.
50
Att’y Gen., 488 F.3d 142, 145, 155 & n.19 (3d Cir. 2007) ,
Jarbough v. Att’y Gen., 483 F.3d 184, 186, 192 (3d. Cir. 2007);
entered the country undetected, Mudric v. Att’y Gen., 469 F.3d
94, 96, 100 (3d Cir. 2006); Cham, 445 F.3d at 689, 691; Sewak
v. INS, 900 F.2d 667, 667, 671-72 (3d Cir. 1990); or became a
legal resident but then committed an enumerated crime,
Romanishyn v. Att’y Gen., 455 F.3d 175, 178, 185 (3d Cir.
2006); Singh v. Gonzales, 432 F.3d 533, 536, 541 (3d Cir.
2006); Chong. v. Dist. Dir., INS, 264 F.3d 378, 381, 386 (3d Cir.
2001). Further, we have recognized this right to due process not
only where, as here, mandatory statutory relief from removal
was at issue, see, e.g., Singh, 432 F.3d at 536 (withholding of
removal under INA § 241(b)(3) and protection under CAT);
Chong, 264 F.3d at 381 (withholding of removal under INA
§ 241(b)(3)), but also where the alien was seeking discretionary
statutory relief, Abdulrahman, 330 F.3d at 591, 596 (asylum);
Abdulai, 239 F.3d at 545, 549 (same).
On this basis, it is a simple matter for us to conclude that
Khouzam was entitled to due process before he could be
removed on the basis of the termination of his deferral of
removal. Next, we determine whether the Government met this
constitutional obligation.
In Mathews v. Eldridge, 424 U.S. 319 (1976), the
Supreme Court explained that “[t]he fundamental requirement
of due process is the opportunity to be heard at a meaningful
time and in a meaningful manner.” Id. at 333. We have found
51
that due process guarantees three basic things in the removal
context. First, an alien facing removal “is entitled to factfinding
based on a record produced before the decisionmaker and
disclosed to him or her.” Abdulai, 239 F.3d at 549 (internal
quotation marks omitted). This includes a “reasonable
opportunity to present evidence on [his or her] behalf.”
Abdulrahman, 330 F.3d at 596. Second, the alien “must be
allowed to make arguments on his or her own behalf.” Abdulai,
239 F.3d at 549. Third, the alien “has the right to an
individualized determination of his or her interests.” Id.
(brackets and internal quotation marks omitted). These elements
are predicated upon the existence of a “neutral and impartial”
decisionmaker. See Abdulrahman, 330 F.3d at 596 (internal
quotation marks omitted).
It is obvious that Khouzam was not afforded notice and
a full and fair hearing prior to his imminent removal on the basis
of diplomatic assurances. In fact, Khouzam was afforded no
notice and no hearing whatsoever. First, the Government failed
to make any factfinding based on a record that was disclosed to
Khouzam. The Government did not permit Khouzam to see the
written diplomatic assurances that had been obtained from
Egypt, and provided no information pertaining to the
Government’s reasons for crediting those assurances. The
Government merely provided Khouzam with a cursory three-line
letter dated three months after the termination decision had been
made. Khouzam had no opportunity to develop a record with
his own evidence. In fact, beyond the Government’s bare
52
assertions, we find no record supporting the reliability of the
diplomatic assurances that purportedly justified the termination
of his deferral of removal.
Second, Khouzam had no opportunity to make arguments
on his own behalf. The Government argues that Khouzam, after
receiving notice of the termination, could have sent the DHS a
letter explaining why he thought the decision was wrong. We
refuse to regard the general ability of an alien to correspond with
an agency as sufficient to satisfy due process, particularly after
the agency has decided the pertinent issue. In addition to
whatever other flaws may exist in this purported opportunity to
argue, we note that Khouzam would not have had the benefit of
a neutral and impartial decisionmaker.
Finally, we also find that Khouzam was denied his right
to an individualized determination. Even if we assume, in the
absence of a meaningful record, that the Government considered
all aspects of Khouzam’s case prior to terminating his deferral,
we again see no indication that Khouzam had the benefit of a
neutral and impartial decisionmaker. Khouzam argues that the
termination decision was tainted by the bias of an organization
that had been attempting unsuccessfully to remove him for
nearly a decade. While “the combination of investigative and
adjudicative functions does not, without more, constitute a due
process violation,” we are not precluded in a particular case
from finding “that the risk of unfairness is intolerably high.”
Withrow v. Larkin, 421 U.S. 35, 58 (1975). On the basis of
53
these considerations, we conclude that the Government
terminated Khouzam’s deferral of removal without
constitutionally sufficient process.
After establishing a due process violation, an alien facing
removal must normally also demonstrate “substantial prejudice.”
E.g. Singh, 432 F.3d at 533 (no substantial prejudice where alien
was denied ability to call additional witnesses and claimed not
to have understood questions at hearing); Romanishyn, 455 F.3d
at 185 (no substantial prejudice where alien was denied ability
to call additional witnesses at hearing). Yet this case presents a
special problem. The Government did not conduct a hearing or
provide any meaningful record justification for the termination
decision. Khouzam accordingly has no record upon which to
base an argument, and we have no record upon which we may
assess prejudice. Such a complete lack of process is inherently
prejudicial. Cf. Podio v. INS, 153 F.3d 506, 509-11 (7th Cir.
1998) (reversing a BIA ruling on due process grounds where
alien “was not allowed to complete his testimony or to present
corroborating witnesses” (citing Gentry v. Duckworth, 65 F.3d
555, 559 (7th Cir. 1995) (“[P]rejudice to the right of access to
the courts occurs whenever . . . court doors [are] actually shut on
a complaint, regardless of whether the suit would ultimately
have succeeded.)). In view of the complete absence of any
process by which Khouzam could have challenged the
Government’s termination decision, we find it obvious that
Khouzam was substantially prejudiced.
54
We do not attribute the lack of due process to either
FARRA or its implementing regulations, for neither expressly
directed the Executive to act in a manner that offends the Fifth
Amendment. A statute is not facially unconstitutional unless
“no set of circumstances exists under which the Act would be
valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). It is
also possible for a particular provision to more narrowly offend
the Constitution on an “as applied” basis, and thus “‘be declared
invalid to the extent that it reaches too far, but otherwise [be]
left intact.’” Ayotte v. Planned Parenthood of N. New England,
546 U.S. 320, 329 (2006) (quoting Brockett v. Spokane Arcades,
Inc., 472 U.S. 491, 504 (1985)). However, neither circumstance
exists here. The process of arriving at diplomatic assurances as
outlined in the regulations is not problematic. See 8 C.F.R.
§ 1208.18(c). It is the ability to test those assurances prior to
removal, an issue not covered in the regulations, that gives us
pause from the standpoint of due process. Both FARRA and its
implementing regulations are silent as to the process to be
afforded to an alien subject to removal on the basis of
diplomatic assurances. Therefore, neither can be said to offend
the Constitution facially, nor can any particular provision be
identified that “reaches too far” under Khouzam’s
circumstances.14 Instead, the Executive, without relying on any
14
FARRA § 2242(d) provides that “[n]otwithstanding any
other provision of law, and except as provided [in the
implementing regulations themselves] no court shall have
(continued...)
55
statutory or regulatory provision, reached too far by failing to
provide Khouzam constitutionally adequate process.
Because the Government violated the Due Process Clause
by terminating Khouzam’s deferral of removal without affording
him an opportunity to test the reliability of Egypt’s diplomatic
assurances, the termination order was invalid. Since Khouzam
was taken into custody on the basis of this invalid order, he must
be restored to the pre-existing terms of release granted by the
District Court of the District of New Jersey on February 6, 2006.
We will remand the matter to the BIA in order to ensure
that Khouzam is afforded due process before he may be
removed on the basis of diplomatic assurances. While it is not
our role to define the procedures to be used, we follow the
example of the Supreme Court and outline the basic
requirements of due process in this context. Cf. Goldberg v.
Kelly, 397 U.S. 254, 265-72 (1970) (providing guidelines to be
followed to ensure that a state affords statutory beneficiaries
adequate process in the welfare termination context). Prior to
removal on the basis of diplomatic assurances, Khouzam must
14
(...continued)
jurisdiction to review the regulations adopted to implement” the
CAT provisions of FARRA. Since we find no reason to
question the validity of the regulations, section 2242 neither
applies nor is itself drawn into constitutional scrutiny. See
Auguste, 395 F.3d at 138 n.13.
56
be afforded notice and an opportunity to test the reliability of
those assurances in a hearing that comports with Abdulai and its
progeny. The alien must have an opportunity to present, before
a neutral and impartial decisionmaker, evidence and arguments
challenging the reliability of diplomatic assurances proffered by
the Government, and the Government’s compliance with the
relevant regulations.15 The alien must also be afforded an
individualized determination of the matter based on a record
disclosed to the alien.16 We have recognized the adequacy of
process generally afforded aliens facing removal in other
contexts, and have no doubt that the Government can readily
adapt such processes to removal based on diplomatic assurances.
15
Since Khouzam will have an opportunity to challenge the
Government’s compliance with the diplomatic assurance
regulations in the hearing, we need not consider the compliance
arguments he raises in his petition for review.
16
To the extent that the Government is concerned that public
disclosure of certain information may jeopardize national
security, we note that existing regulations provide a procedure
through which the Government can move for the issuance of an
appropriate protective order. See 8 C.F.R. § 1003.46.
57
CONCLUSION
For the foregoing reasons, we hold that the District Court
had no jurisdiction over Khouzam’s petition for a writ of habeas
corpus, and the order granting that petition will accordingly be
VACATED. We will REMAND the matter to the District Court
for proceedings consistent with this Opinion. However, we also
hold that we have jurisdiction over Khouzam’s petition for
review, and that Khouzam was denied due process. We will
accordingly GRANT Khouzam’s petition for review, VACATE
the termination of Khouzam’s deferral of removal and
REMAND the matter to the BIA for additional proceedings
consistent with this Opinion.
__________________
58