469 F.Supp.3d 69
W.D.N.Y.2020Background
- Petitioner Adham Amin Hassoun is a Palestinian (born in Lebanon) convicted in 2004 of terrorism-related offenses; he completed his federal prison term in October 2017 and has been held in ICE custody since on a preexisting final removal order that ICE has been unable to execute.
- In a prior habeas, Judge Geraci found no significant likelihood of removal and held detention under 8 U.S.C. §§ 1227/1231(a)(6) unlawful, ordering release unless another lawful basis justified continued custody.
- DHS/ICE subsequently certified Hassoun’s continued detention under 8 C.F.R. § 241.14(d) and under 8 U.S.C. § 1226a(a)(6), relying largely on FBI memoranda summarizing allegations from former detainees/jailhouse informants.
- The district court previously ruled § 241.14(d) cannot lawfully authorize Hassoun’s potentially indefinite detention and ordered an evidentiary hearing under § 1226a with Respondent bearing the burden to prove by clear and convincing evidence that release would threaten national security or safety.
- On the eve of the hearing, Respondent conceded his evidence—FBI memoranda and informant statements—was insufficient (even under preponderance); the court therefore granted habeas relief, ordered Hassoun released under agreed conditions of supervision, and denied a stay pending appeal (but briefly delayed release to permit emergency appellate relief).
Issues
| Issue | Plaintiff's Argument (Hassoun) | Defendant's Argument (Searls/ICE/DHS) | Held |
|---|---|---|---|
| Validity of detention under 8 C.F.R. § 241.14(d) | Regulation cannot lawfully permit ongoing/indefinite detention and lacks constitutionally required protections | Regulation authorizes continued detention in appropriate cases and is within delegated authority | Court: § 241.14(d) is invalid for authorizing indefinite detention and cannot lawfully authorize Hassoun’s custody; law of the case |
| Lawfulness of detention under 8 U.S.C. § 1226a(a) / due process & burden of proof | § 1226a allows habeas review; due process requires meaningful judicial review and imposes on the government a high evidentiary burden (court set clear and convincing) | § 1226a allows executive detention; DHS urges deference to agency findings and contests burden/need for hearing | Court: Even assuming § 1226a applies, Respondent conceded he cannot meet the required factual predicate (cannot show release would threaten national security or safety); detention not lawful here |
| Reliability and sufficiency of evidence (FBI memos, jailhouse informants) | Informant reports are unsworn, uncorroborated, and in several instances demonstrably unreliable and contradicted by government records and witness statements | Government contends memoranda and informant statements support detention and that procedural protections suffice | Court: FBI memoranda rest on weak, often discredited jailhouse informant allegations; government could not carry evidentiary burden and much proffered hearsay was unreliable or excluded |
| Stay of release pending appeal | Release is warranted; detainee has strong interest in release; public interest does not outweigh inadequate government showing | Government seeks stay arguing national security/public safety and interference with executive authority; raises likelihood of success on appeal | Court: Denied stay—government failed to show likelihood of success or irreparable harm; brief administrative stay (until July 2, 2020) granted to permit emergency appellate applications |
Key Cases Cited
- Boumediene v. Bush, 553 U.S. 723 (habeas courts must have authority for meaningful review of executive detention)
- Zadvydas v. Davis, 533 U.S. 678 (limits on post-removal-period indefinite detention)
- Clark v. Martinez, 543 U.S. 371 (statutory construction reinforcing limits on indefinite detention)
- Hamdi v. Rumsfeld, 542 U.S. 507 (due process requires a neutral tribunal to review detention allegations)
- United States v. Salerno, 481 U.S. 739 (government must meet a high evidentiary standard to justify pretrial detention for dangerousness)
- Foucha v. Louisiana, 504 U.S. 71 (state must prove dangerousness/insanity by clear and convincing evidence for civil commitment)
- Hilton v. Braunskill, 481 U.S. 770 (standards governing release pending appeal in habeas context)
- Nken v. Holder, 556 U.S. 418 (stay-pending-appeal four-factor test)
- Parhat v. Gates, 532 F.3d 834 (courts must engage in meaningful review; cannot rubber-stamp government assertions)
- Ali v. Trump, 959 F.3d 364 (D.C. Cir. discussion on standards of proof in enemy-combatant detention contexts)