Adel Hassan HAMAD, Plaintiff-Appellant-Cross-Appellee, v. Robert M. GATES, in his individual capacity; Donald H. Rumsfeld, in his individual capacity; Paul Wolfowitz, in his individual capacity; Gordon R. England, in his individual capacity; James M. McGarrah, in his individual capacity; Richard Bowman Myers, in his individual capacity; Peter Pace, in his individual capacity; Michael Glenn Mullen, in his individual capacity, aka Mike Mullen; James T. Hill, in his individual capacity; Bantz J. Craddock, in his individual capacity; Geoffrey D. Miller, in his individual capacity; Jay Hood, in his individual capacity; Harry B. Harris, Jr., in his individual capacity; Mark H. Buzby, in his individual capacity; Adolph McQueen, in his individual capacity; Nelson Cannon, in his individual capacity; Michael Bumgarner, in his individual capacity, aka Mike Bumgarner; Wade Dennis, in his individual capacity; Bruce Vargo, in his individual capacity; Estaban Rodriguez, in his individual capacity, aka Stephen Rodriguez, aka Steve Rodriguez; Daniel K. McNeill, in his individual capacity; Gregory J. Ihde, in his individual capacity; John Does 1-100, in their individual capacities; United States of America, Defendants-Appellees-Cross-Appellants.
Nos. 12-35395, 12-35489
United States Court of Appeals, Ninth Circuit
October 7, 2013
732 F.3d 990
Before: ARTHUR L. ALARCON, M. MARGARET McKEOWN, and SANDRA S. IKUTA, Circuit Judges.
Argued and Submitted June 3, 2013.
We also reject the government‘s argument that the sentencing error was harmless. In imposing the sentence, the district court stated:
I would also note that if I‘m wrong on the calculations, I‘m fairly confident that the sentence that likely would be imposed assuming the Court or court on appeal would find that the statutory rape is not applicable and that the four-year age differential is essential and that the Court is wrong on finding that there‘s a crime of violence on either theory [categorical or modified categorical] that‘s been suggested, I would doubt very much that there would be any significant change in the sentence that‘s about to be imposed.
The government‘s argument is unpersuasive. The district court did not actually calculate the sentence it would have imposed absent the enhancement and imposed a sentence that was above the Guidelines range absent the enhancement. See United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n. 5 (9th Cir. 2011) (noting that a Guidelines calculation error may be harmless if one of four non-exhaustive factors is satisfied, including if the district court “chooses a within-Guidelines sentence that falls within ... the correct Guidelines range“); see also United States v. Acosta-Chavez, 727 F.3d 903, 909-10 (9th Cir. 2013).
IV. CONCLUSION
In sum, we hold that the IJ violated an immigration regulation designed to protect an alien‘s right to judicial review and that Gomez was denied due process in his 2006 removal proceedings, but that these violations were harmless in light of his ineligibility for relief from removal. We therefore affirm the denial of his motion to dismiss the indictment. We further hold that Gomez‘s conviction under Arizona Revised Statute section 13-1405 did not constitute a “crime of violence” within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii), and therefore the district court erred in applying a sixteen-level sentencing enhancement. Thus, we vacate Gomez‘s sentence and remand for resentencing.
AFFIRMED in part and VACATED in part, and REMANDED.
Stuart F. Delery, Acting Assistant Attorney General; Jenny Durkan, United States Attorney; Robert M. Loeb and Sydney Foster (argued), Attorneys, Appellate Staff, Civil Division, United States Department of Justice, Washington D.C., for Defendant-Appellees/Cross-Appellants.
IKUTA, Circuit Judge:
Adel Hassan Hamad was detained at Guantanamo Bay as an enemy combatant. He seeks damages for his detention and his treatment from former Secretary of Defense Robert Gates and numerous other military and civilian officials. We conclude, however, that
I
Hamad, a citizen of Sudan, alleges that he was detained in Pakistan in 2002 by Pakistani security forces acting under the direction of an “unknown American official.” According to Hamad, he was transferred to United States military custody and detained, first at Bagram Airfield in Afghanistan, and then at Guantanamo Bay.
In July 2004, the Department of Defense established Combatant Status Review Tribunals (CSRTs) to determine whether foreign nationals held at Guantanamo Bay qualified for detention as “enemy combatants.” Boumediene v. Bush, 553 U.S. 723, 733 (2008); Memorandum from Deputy Secretary of Defense Paul Wolfowitz re Order Establishing Combatant Status Review Tribunal § a (July 7, 2004), available at http://www.defense.gov/news/Jul2004/d20040707review.pdf (Wolfowitz Memo.). The Department of Defense defined the term “en-
In addition to establishing the CSRT procedure, the Department of Defense established Administrative Review Boards (ARBs) to “determine annually if enemy combatants detained ... [at] Guantanamo Bay, Cuba should be released, transferred or continue to be detained” based on an assessment of various factors, including the continued threat posed by each detainee. Memorandum from Deputy Secretary of Defense Gordon England re Revised Implementation of Administrative Review Procedures § 1, Enclosure 3 § 1 (July 14, 2006), available at http://www.defense.gov/news/Aug2006/d20060809arbproceduresmemo.pdf (England Memo.); see also Boumediene, 553 U.S. at 821 (Roberts, C.J., dissenting) (describing the ARB process). ARBs were required to issue recommendations as to whether to (1) “[r]elease the enemy combatant without limitations” to another country; (2) “[t]ransfer the enemy combatant to [another country] with conditions agreed upon between that [country] and the United States“; or (3) “[c]ontinue to detain the enemy combatant.” See England Memo., Enclosure 3 § 1.
In November 2005, an ARB panel determined that Hamad continued to be a threat to the United States and its allies, but also decided that he was eligible to be transferred to Sudan. As a result, in 2007, after the United States concluded negotiations with Sudan, Hamad was transferred to that country.1
In April 2010, Hamad filed an action for money damages in a federal district court in Washington State against twentytwo United States military and civilian government officials, including former United States Secretary of Defense Robert Gates,2 and one hundred unnamed federal officials, all in their individual capacities. In his complaint, Hamad raised six claims under state common law and the Alien Tort Statute,
The district court dismissed all defendants other than Gates for lack of personal jurisdiction. With respect to Hamad‘s six international law claims against Gates, the district court granted the government‘s motion to substitute itself for Gates under
II
This appeal requires us to address a key threshold question: whether the district court had jurisdiction over the subject matter of this action, given the jurisdiction-stripping provisions in
(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
“The existence of subject matter jurisdiction is a question of law that we review de novo.” Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 944 (9th Cir. 2009).
A
Looking to the plain language of
Hamad‘s action meets each of these requirements. It is “against the United States or its agents” and relates to aspects of Hamad‘s “detention” and “treatment” (the first and second requirements), because Hamad is seeking damages from United States military and civilian officers for his detention and treatment at Guantanamo. Hamad‘s action satisfies the third requirement, because there is no dispute that a CSRT determined that Hamad was properly detained as an enemy combatant. It also meets the fourth requirement, be-
B
Although
In order to analyze these arguments, we must first review the complex historical context which forms their backdrop.
1
“On September 11, 2001, the al Qaeda terrorist network used hijacked commercial airliners to attack prominent targets in the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 510 (2004). In response, Congress authorized the President to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks ..., or harbored such organizations or persons.” Authorization for Use of Military Force of 2001, Pub.L. 107-40, § 2, 115 Stat. 224, 224. “In Hamdi ... five Members of the Court recognized that detention of individuals who fought against the United States in Afghanistan for the duration of the particular conflict in which they were cap-
tured, is so fundamental and accepted an incident to war as to be an exercise of the necessary and appropriate force Congress has authorized the President to use.” Boumediene, 553 U.S. at 733 (internal quotation marks omitted). On the same day it issued its opinion in Hamdi, the Supreme Court also issued Rasul v. Bush, which held that federal courts had jurisdiction under the then-effective version of the habeas statute,
Shortly after the Supreme Court decided Hamdi and Rasul, the Department of Defense “established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at Guantanamo were ‘enemy combatants,’ as the Department define[d] that term.” Boumediene, 553 U.S. at 733. The Department of Defense defined “enemy combatant” as “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.” Hamdan, 548 U.S. at 570 n. 1. (internal quotation marks omitted).
In 2005, Congress responded to the Supreme Court‘s decision in Rasul, as well as the Executive‘s decision to establish Combatant Status Review Tribunals, by enacting the Detainee Treatment Act of 2005 (DTA), Pub.L. No. 109-148, div. A, title X, 119 Stat. 2680, 2739-44. In direct
Congress provided two exceptions to this jurisdiction-stripping language in § 1005(e)(2) and (3) of the DTA. First, building on the Executive‘s creation of CSRTs, § 1005(e)(2) permitted the D.C. Circuit to review “the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.” DTA § 1005(e)(2)(A). Specifically, the D.C. Circuit could review (1) whether a final decision of a CSRT was consistent with certain specified procedures, and (2) whether those procedures complied with the Constitution and applicable federal law. DTA § 1005(e)(2)(C).4 Second, DTA § 1005(e)(3) allowed the D.C. Circuit to perform a limited review of convictions by military tribunals.5
Less than a year later, the Supreme Court held that the DTA‘s jurisdiction-stripping amendments to
Congress responded once again by enacting the Military Commissions Act of 2006(MCA), Pub.L. No. 109-366, 120 Stat. 2600. Section 7 of the MCA amended
The Supreme Court considered this amendment to
Because the Supreme Court interpreted the amendment to
detainees of the privilege of the writ of habeas corpus unless Congress‘s actions complied with the requirements of the Suspension Clause. Id. Because Congress‘s enactment of the MCA did not so comply, the Court concluded that petitioners could challenge their detention by means of a petition for habeas corpus. Id. Next, the Court determined that the limited D.C. Circuit Review provided by the DTA was not a sufficient substitute procedure for habeas, in part because it did not give detainees a sufficient ability to present exculpatory evidence. Id. at 789. The Court thus held that § 7 of the MCA “effects an unconstitutional suspension of the writ.” Id. at 792.7
Because Boumediene‘s holding and analysis focused on Congress‘s authority to suspend habeas corpus at Guantanamo Bay, it did not analyze whether
2
We now consider Hamad‘s arguments in light of this historical context. Implicitly acknowledging that
Hamad first argues that we should interpret Boumediene as invalidating § 2241(e) as a whole, not just
We disagree. Although Boumediene did not expressly differentiate between
§ 2241(e) only to the extent that the statute barred the petitioners from filing habeas corpus actions: “[o]ur decision today holds only that petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court.” Boumediene, 553 U.S. at 795. Given the Court‘s focus on habeas petitions and the narrowness of its holding, it is plain that the Court was addressing only
3
Second, Hamad contends that, even if Boumediene did not expressly invalidate
We also reject this argument. As a general rule, courts are to “refrain from invalidating more of [a] statute than is necessary,” United States v. Booker, 543 U.S. 220, 258 (2005) (internal quotation marks omitted), because “[a] ruling of unconstitutionality frustrates the intent of the elected representatives.” Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329 (2006) (alteration in original) (internal quotation marks omitted). Accordingly, when we in-
Beginning with the second prong of the Booker severability test, it is apparent that
Hamad contends that Boumediene‘s interpretation of § 7(a) and (b) of the MCA
shows that
Hamad seizes on the Court‘s statement that “any other action” in
We next turn to the third prong of the Booker severability test, which asks
whether retaining
Finally, Hamad argues that the absence of a severability clause indicates that Congress did not intend these provisions to be severable, and thus holding otherwise would be inconsistent with Congress‘s objectives. But “[i]n the absence of a severability clause ... Congress’ silence is just that-silence-and does not raise a presumption against severability.” Alaska Airlines, 480 U.S. at 686.10 The lack of a severability clause carries no weight in our analysis because the text and historical context of
Because
4
We finally turn to Hamad‘s arguments that
Hamad first argues that
Hamad is correct that the Supreme Court has avoided the question whether Congress may completely deny a plaintiff access to federal forum to seek a remedy for a violation of constitutional rights. See Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 681 n. 12 (1986) (avoiding “the serious constitutional question that would arise if [the Court] construed [a statute] to deny a judicial forum for constitutional claims” (internal quotation marks omitted)). But we can likewise avoid addressing this difficult issue, because Hamad seeks only money damages, and the Constitution does not require the availability of such a remedy, even where the plaintiff‘s claim is based on alleged violations of constitutional rights. Al-Zahrani v. Rodriguez, 669 F.3d 315, 319 (D.C. Cir. 2012).
Hamad next argues that
Applying these principles, we conclude that
Finally, Hamad argues that
As an initial matter, the Supreme Court has not determined whether the Fifth Amendment‘s protections even apply to Hamad. Prior to Boumediene, the Supreme Court had “never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.” Boumediene, 553 U.S. at 770. Although Boumediene ultimately concluded that the Suspension Clause applies to aliens detained at Guantanamo Bay, the Court expressly confined its holding to that constitutional provision alone. See id. at 795; Rasul v. Myers, 563 F.3d 527, 529 (D.C. Cir. 2009) (”Boumediene disclaimed any intention to disturb existing law governing the extraterritorial reach of any constitutional provisions, other than the Suspension Clause.“).
Assuming, without deciding, that the Fifth Amendment‘s protections apply to aliens detained outside the United States, the Due Process Clause does not render
Although the Supreme Court has noted the “substantial limitations upon the authority of the States in making classifications based upon alienage,” Toll v. Moreno, 458 U.S. 1, 10 (1982), the federal government‘s interests with respect to aliens differ substantially from those of the states, and there are legitimate reasons for Congress to make classifications based on alienage, Mathews v. Diaz, 426 U.S. 67, 78-80 (1976). These reasons include Congress‘s broad authority to make such classifications under its plenary power to regulate immigration and naturalization, see United States v. Lopez-Flores, 63 F.3d 1468, 1473 (9th Cir. 1995), as well as its authority to address the United States’ relations with foreign powers and other foreign policy concerns, Mathews, 426 U.S. at 81. Indeed, legislation with respect to aliens is “vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government,” and “[s]uch matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.” Id. at 81 n. 17 (internal quotation marks omitted).
Accordingly, we review alienage classifications drawn by Congress under a rational basis test. Aleman v. Glickman, 217 F.3d 1191, 1197 (9th Cir. 2000); Lopez-Flores, 63 F.3d at 1473. “Only classifications that ‘arbitrarily subject all resident aliens to different substantive rules from those applied to citizens’ will fail to survive that scrutiny.” Lopez-Flores, 63 F.3d at 1475 (quoting Hampton, 426 U.S. at 101); accord United States v. Montenegro, 231 F.3d 389, 395 (7th Cir. 2000); United States v. Lue, 134 F.3d 79, 86-87 (2d Cir. 1998). Under the rational basis test, we will uphold a federal statute that makes a classification on the basis of alienage if it is “rationally related to a legitimate government interest.” Montenegro, 231 F.3d at 395 (internal quotation marks omitted). Applying this test in Lopez-Flores, we upheld the federal Hostage Taking Act, which criminalized certain conduct involving either a foreign perpetrator or foreign victim, but not conduct where both the perpetrator and victim were United States nationals. 63 F.3d at 1470-72. Rejecting appellants’ argument that the statute violated equal protection principles by “impermissibly classifying offenders and victims on the basis of alienage,” id. at 1470, we concluded that “[t]he alienage classifications contained in the Hostage Taking Act were clearly intended to serve Congress’ legitimate foreign policy concerns,” and thus easily survived scrutiny, Id. at 1475.
In this case, Congress‘s decision in
C
Because we do not have subject-matter jurisdiction to consider any of Hamad‘s claims, we need not reach Hamad‘s other arguments on appeal.12 See Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 94 (1998) (when jurisdiction “ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause” (internal quotation marks omitted)). We vacate the district court‘s orders in this case and remand with instructions to enter judgment dismissing Hamad‘s action for lack of subject-matter jurisdiction. See Capitol Industries-EMI, Inc. v. Bennett, 681 F.2d 1107, 1118 (9th Cir. 1982).
VACATED AND REMANDED.