427 F.Supp.3d 357
W.D.N.Y.2019Background
- Petitioner Adham Amin Hassoun: Palestinian-born, final order of removal (2003); later convicted of terrorism-related federal crimes and imprisoned until October 2017. ICE has been unable to secure removal since 2017 due to lack of travel documents; Petitioner has remained in immigration custody since October 2017.
- Earlier habeas petition (Hassoun v. Sessions) resulted in an order directing release March 1, 2019 unless Respondent identified another lawful basis for detention; Respondent then invoked 8 C.F.R. § 241.14(d).
- DHS (Acting Secretary McAleenan) certified continued detention under both 8 C.F.R. § 241.14(d) (national-security/terrorism certification) and 8 U.S.C. § 1226a (terrorism-related detention statute).
- Petitioner challenged the lawfulness of detention under § 241.14(d) and § 1226a in a § 2241 habeas petition and supplemental briefing; oral argument was held November 22, 2019.
- The court concluded § 241.14(d) is inconsistent with § 1231(a)(6) as construed in Zadvydas and Clark and therefore invalid; the court declined to resolve § 1226a on the existing record and ordered an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of 8 C.F.R. § 241.14(d) under § 1231(a)(6) | § 241.14(d) authorizes indefinite detention contrary to Zadvydas/Clark; regulation is ultra vires. | § 241.14(d) can be reconciled with Zadvydas/Clark when narrowly tailored for national-security/terrorism cases. | Court: § 241.14(d) conflicts with § 1231(a)(6) as construed by Zadvydas and Clark and is a legal nullity. |
| Procedural due process under § 241.14(d) | Procedures are minimal: no neutral decisionmaker, no clear burden of proof, limited ability to contest evidence; thus inadequate. | Procedures (notice, opportunity to submit info, periodic review, habeas review) suffice given security interests. | Court: Procedures inadequate (lack neutral adjudicator; no clear-and-convincing standard); regulation raises serious constitutional doubts. |
| Standing/exhaustion for procedural challenge (Petitioner declined DHS interview) | Declining the interview does not forfeit ability to challenge procedures; Petitioner submitted written response. | Petitioner cannot claim prejudice if he did not use administrative review procedures. | Court: Rejects Respondent's exhaustion/standing argument; decline to penalize Petitioner for declining an inadequate process. |
| Whether ICE custody tolls commencement of supervised release | Petitioner: ICE custody does not toll supervised-release term; supervised release commenced on transfer from BOP. | Respondent: Supervised-release term not commenced because released from BOP to another federal agency. | Court: Criticized Respondent's position as unsupported by authority; cited authority suggesting ICE custody does not toll supervised release. |
| Applicability and constitutionality of 8 U.S.C. § 1226a to Petitioner | § 1226a does not apply or is unconstitutional; if statute remains, court should make de novo factual/legal findings. | § 1226a authorizes detention and permits limited judicial review; agency factual findings are entitled to deference or limited review. | Court: Did not decide merits; because § 1226a is a statute (not a regulation) it warrants deference and a full record is required — an evidentiary hearing is ordered. |
Key Cases Cited
- Zadvydas v. Davis, 533 U.S. 678 (2001) (construed § 1231(a)(6) to include an implicit reasonable-time limit on post-removal detention)
- Clark v. Martinez, 543 U.S. 371 (2005) (rejected treating classes of aliens differently under § 1231(a)(6); ‘‘lowest common denominator’’ governs)
- National Cable & Telecommunications Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005) (agency interpretation may receive Chevron deference unless prior court decision unambiguously forecloses it)
- Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 2008) (upheld 8 C.F.R. § 241.14(f) under Brand X reasoning and applied Chevron deference)
- Thai v. Ashcroft, 366 F.3d 790 (9th Cir. 2004) (invalidated 8 C.F.R. § 241.14(f) as inconsistent with Zadvydas)
- Iran v. Mukasey, 515 F.3d 478 (5th Cir. 2008) (concluded § 1231(a)(6) does not authorize indefinite detention and invalidated § 241.14(f) application)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (framework for balancing private interest, risk of erroneous deprivation, and government interest in due-process analysis)
- Addington v. Texas, 441 U.S. 418 (1979) (clear-and-convincing evidence is required for certain civil commitment detentions)
- Boumediene v. Bush, 553 U.S. 723 (2008) (national-security concerns require deference but do not eliminate constitutional protections)