ADHAM AMIN HASSOUN, Petitioner, v. JEFFREY SEARLS, in his official capacity as Acting Assistant Field Office Director and Administrator of the Buffalo Federal Detention Facility, Respondent.
1:19-cv-00370 EAW
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
June 29, 2020
INTRODUCTION
Petitioner Adham Amin Hassoun (“Petitioner“) is a civil immigration detainee currently housed at the Buffalo Federal Detention Facility (the “BFDF“) in Batavia, New York, who seeks a writ of habeas corpus pursuant to
For the reasons discussed below and in its prior decisions in this matter, the Court finds that neither
BACKGROUND
The Court has issued several prior Decisions and Orders in this matter (see Dkt. 55; Dkt. 75; Dkt. 138; Dkt. 150; Dkt. 225), familiarity with which is assumed for purposes of this Decision and Order. For ease of referencе, the Court has summarized the salient facts and procedural history below.
Petitioner is “a Palestinian who, while born in Lebanon, is not a citizen of Lebanon.” Hassoun v. Sessions, No. 18-CV-586-FPG, 2019 WL 78984, at *1 (W.D.N.Y. Jan. 2, 2019). Removal proceedings were instituted against him in 2002, after he failed to comply with the conditions of his student visa, and his final order of removal became administratively final in 2003. Id. However, before he could be removed, Petitioner was taken into custody in early 2004 on federal criminal charges, and was ultimately convicted of “(1) conspiracy to murder, kidnap and maim persons in a foreign country (
Petitioner was sentenced to 188 months in prison and 20 years supervised release. See United States v. Jayyousi, 657 F.3d 1085, 1092 (11th Cir. 2011). Petitioner completed his term of imprisonment in October 2017, and “was again detained by immigration
In May 2018, Petitioner filed a petition for a writ of habeas corpus pursuant to
On February 22, 2019, Respondent filed a notice informing Judge Geraci that he intended to continue to detain Petitioner beyond March 1, 2019, pursuant to
Petitioner commenced the instant habeas corpus proceeding on March 15, 2019. (Dkt. 1). He filed an Amended Petition and a memorandum in support thereof on May 14, 2019. (Dkt. 13; Dkt. 14). Respondent filed his opposition to the Amended Petition on June 28, 2019. (Dkt. 17). Petitioner filed a reply on August 9, 2019. (Dkt. 25).
Also on August 9, 2019, then-Acting Secretary of Homeland Security Kevin K. McAleenan (“Secretary McAleenan“) certified Petitioner‘s continued detention under
At the request of the parties, supplemental briefing was submitted in September and October of 2019. (See Dkt. 26; Dkt. 28; Dkt. 30; Dkt. 32). Oral argument was held before the undersigned on November 22, 2019. (Dkt. 53). On December 13, 2019, the Court entered a Decision and Order finding that Petitioner‘s continued detention is not lawfully authorized by
After additional briefing by the parties (see Dkt. 60; Dkt. 61; Dkt. 63; Dkt. 67), on January 24, 2020, the Court issued a Decision and Order regarding the parameters of the evidentiary hearing. (Dkt. 75). In particular, the Court held that: (1) at the evidentiary hearing, Respondent would bear the burden of demonstrating by clear and convincing evidence that the factual predicate for continued detention under
The Court permitted the parties to engage in discovery in advance of the evidentiary hearing. (See Dkt. 57; Dkt. 58; Dkt. 70). On February 28, 2020, Petitioner filed a motion to compel and for a protective order (Dkt. 91), and Respondent filed a motion to defer consideration of any potential assertion of the state secrets privilege (Dkt. 90). The Court heard oral argument on the parties’ discovery motions on March 16, 2020, and orally announced certain rulings while reserving decision as to other issues. (Dkt. 113; Dkt. 114).
On March 31, 2020, Respondent filed a motion to adjourn the evidentiary hearing, which was then scheduled to commence on April 28, 2020, due to the COVID-19 pandemic. (Dkt. 120). Petitioner filed a cross-motion seeking a transfer to home incarceration and, barring such relief, opposed the motion to adjourn. (Dkt. 122). On April 10, 2020, the Court entered a Decision and Order denying Petitioner‘s motion for transfer to home incarceration and granting Respondent‘s request to adjourn the evidentiary hearing. (Dkt. 150).
On June 11, 2020, Respondent filed a Notice (Dkt. 207) informing the Court that on June 5, 2020, the FBI issued a lеtterhead memorandum (Dkt. 223) (the “June FBI Memo“) to Acting Secretary of Homeland Security Chad F. Wolf in connection with the periodic review of Petitioner‘s continuing detention required by
A pre-hearing conference was conducted on June 12, 2020, at which time the Court resolved a number of issues but reserved decision on others. (Dkt. 218; Dkt. 220). On June 15, 2020, the Court issued a Text Order identifying its resolution of the issues on which it had reserved decision. (Dkt. 216). Then, on June 18, 2020, the Court issued a Decision and Order explaining in detail its reasoning for its various decisions concerning
During the evening of June 18, 2020, Respondent filed a Notice and Motion to Cancel the Evidentiary Hearing and Proceed to Final Judgment. (Dkt. 226) (the “Motion to Cancel“). In the Motion to Cancel, Respondent—while preserving all his prior arguments—“advise[d] that [his] remaining evidence is insufficient to meet the standard set by the Court.” (Id. at 3). On this basis, Respondent asked the Court “to cancel the evidentiary hearing and to rule on the papеrs in this case . . . and issue final judgment.” (Id.).3
The Court orally announced at the telephone conference on June 22, 2020, that it would be entering a written decision granting the Petition and ordering Petitioner‘s release. (Id. at 21-22). The Court further ordered the parties to submit any agreed-upon conditions of supervision by June 23, 2020, and set a deadline of June 24, 2020, for Respondent to file a motion for a stay of Petitioner‘s release pending appeal. (Dkt. 236; Dkt. 237).
DISCUSSION
I. Respondent Cannot Lawfully Continue to Detain Petitioner
In Petitioner‘s prior habeas petition, Judge Geraci held that the government had “exceeded its authority to detain Petitioner under
Respondent has identified two legal authorities that he contends authorize Petitioner‘s ongoing detention:
Turning to
Respondent has conceded that at this point in time, and taking into account the Court‘s evidentiary rulings, he cannot demonstrate—by clear and convincing evidence or even by a preponderance of the evidence—that Petitioner‘s release would threaten the national security of the United States or the safety of the community or any person. (See Dkt. 244 at 9). Accordingly, the factual predicate for Petitioner‘s continued detention under
II. Conditions of Supervision
The parties agree that this Court has the authority to set conditions of supervision in connection with Petitioner‘s release. (See Dkt. 232 at 2 n.1; Dkt. 244 at 10); see also Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (“[T]he alien‘s release may and should be conditioned on any of the various forms of supervised release that are appropriate in the circumstances, and the alien may no doubt be returned to custody upon a violation of those conditions.“). The parties have further stipulated to the following conditions of supervision (with Respondent, of course, reserving his contention that Petitioner should not be released under any conditions):
- Petitioner shall be subject to home confinement at [REDACTED]6
Petitioner shall wear an ankle bracelet monitor equipped with a monitoring device. - Petitioner shall not leave home confinement without advance permission.
- Petitioner shall report the names of any visitors, except immediate family members (defined as mother, father, sister, brother, daughter, or son) in advance of the visit. The following individuals are pre-approved family members whose visit need not be reported in advance: [REDACTED] (Petitioner‘s sister‘s ex-spouse); [REDACTED] (Petitioner‘s nephew); [REDACTED] (Petitioner‘s nephew‘s wife); [REDACTED] (Petitioner‘s grandnephew). The following individuals are residents at the address of home confinement, [REDACTED], and are not considered visitors for this condition: [REDACTED] (sister); [REDACTED] (son); [REDACTED] (daughter-in-law); [REDACTED] (grandson).
- Petitioner shall be permitted to make emergency or urgent medical visits without prior authorization but must report such visits within seven days of the visit.
- Petitioner shall be permitted to visit a pre-approved place of worship for pre-approved scheduled events or activities.
- Petitioner shall not pоssess any Internet-capable device without prior permission, and any such device shall be subject to monitoring. Petitioner shall be permitted use of one or more such devices approved by the government.
- Petitioner shall not communicate or associate with any known terrorist or extremist, including but not limited to persons associated with ISIS, al Qaeda, or any persons or groups known to be hostile to the United States or who support violence against the United States or its allies or interests or any civilians.
- Petitioner shall not create, possess, access, or otherwise view material that reflects terrorist or extremist views. This condition excludes any such material that is presented by a mainstream English-language news outlet in reporting on current events.
- Petitioner shall not make any attempts to radicalize others, including trying to persuade others (1) to view terrorist or extremist material; (2) to
swear allegiance to or join terrorist or extremist causes or groups; (3) to commit acts of terrorism or violence; or (4) to assist others in committing acts of terrorism or violence. - Petitioner shall comply fully with the U.S. government‘s efforts to effectuate his removal, including by providing requested information and documentation in support of these efforts.
- The parties shall review these conditions every six months.
(Dkt. 240). The Court has reviewed the jointly proposed conditions of supervision and finds they are appropriate and rationally related to the government‘s legitimate interests in “reducing the number of absconding aliens,” “accounting for and being able to produce any alien who becomes removable,” and “protecting public safety and national security.” Yusov v. Shaughnessey, 671 F. Supp. 2d 523, 530 (S.D.N.Y. 2009) (quotations omitted), aff‘d, 396 F. App‘x 780 (2d Cir. 2010). The Court accordingly adopts and imposes these conditions of supervision.
III. Motion to Stay Release Pending Appeal
Respondent has asked the Court to stay Petitioner‘s release pending appeal. (Dkt. 242). Petitioner opposes this request. (Dkt. 247). For the reasons set forth below, the Court finds that a stay pending appeal is not warranted. However, the Court will enter a brief stay until 12:00 p.m. on Thursday, July 2, 2020, to allow Respondent an opportunity to seek emergency relief from an appellate court.
A. Legal Standard
“There is a presumption of release pending appeal where a petitioner has been granted habeas relief.” O‘Brien v. O‘Laughlin, 557 U.S. 1301, 1302 (2009) (Breyer, J., in Chambers); see
To justify the granting of a stay, a movant need not always establish a high probability of success on the merits. Probability of success is inversely proportional to the degree of irreparable injury evidenced. A stay may be granted with either a high probability of success and some injury, or vice versa.
Cuomo v. U.S. Nuclear Regulatory Comm‘n, 772 F.2d 972, 974 (D.C. Cir. 1985); see also Mohammed v. Reno, 309 F.3d 95, 101 (2d Cir. 2002) (“The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury [the moving
B. Likelihood of Success on the Merits
As to the first factor:
The moving party is not required to show that it is assured of success on appeal. Rather, it can satisfy the first factor by raising in its appeal “questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation.”
Al-Adahi v. Obama, 672 F. Supp. 2d 81, 83 (D.D.C. 2009) (quoting Wash. Metro. Area Transit Comm‘n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977)); see also Hilton, 481 U.S. at 778 (“Where the State establishes that it has a strong likelihood of success on appeal, or where, failing that, it can nonetheless demonstrate a substantial case on the merits, continued custody is permissible if the second and fourth factors in the traditional stay analysis militate against release. Where the State‘s showing on the merits falls below this level, the preference for release should control.” (citations omitted)).
Here, the Court agrees with Respondent that certain aspects of this case involve novel and difficult questions of law. (See Dkt. 242-1 at 1). However, when the case as a whole is examined, it becomes clear that Respondent cannot demonstrate he is likely to prevail on appeal, or even that there is a substantial case on the merits. Distilled to its core, Respondent‘s position is that he should be able to detain Petitioner indefinitely based on the executive branch‘s say-so, and that decision is insulated from any meaningful review by the judiciary. The record in this case demonstrates firsthand the danger of adopting Respondent‘s position. Respondent‘s position cannot withstand constitutional scrutiny.
8 C.F.R. § 241.14(d)
Respondent contends that he is likely to succeed on his contention that Petitioner‘s conditioned detention is authorized by
“Courts have described the likelihood of success on appeal as a calculation that requires disinterested analysis and frank self-criticism by thе district court. . . .” Waiters v. Lee, 168 F. Supp. 3d 447, 452 (E.D.N.Y. 2016) (quotation omitted). In other words, while the Court has rejected Respondent‘s arguments in deciding the Petition in favor of Petitioner, it must now “review[] the circumstances of the case with all the disinterest [it] can muster[.]” Id.
For reasons set forth at length in its Decision and Order of December 13, 2019, and that it need not repeat here, the Court is of the firm conviction that
However, the standard for issuing a stay pending appeal is not whether Respondent may prevail as to one particular issue, but whether he is ultimately likely to succeed in having this Court‘s judgment overturned. Here, Respondent has not demonstrated that he can make out even a substantial case on the merits that the regulation is constitutional, which is fatal to his argument. While Respondent argues that the regulation offers “sufficient safeguards” against an erroneous deprivation of Petitioner‘s liberty (see Dkt. 242-1 at 18-20), there is no dispute that the regulation, as interpreted by Respondent, does not provide fоr one of the most fundamental due process protections: a neutral decisionmaker. In particular, while Respondent states that “[l]egal challenges to the regulation are reviewed by Article III judges in habeas” (id. at 20), he has also argued that “the agency‘s bottom-line factual conclusion . . . is untouchable” (Dkt. 17-4 at 48-49; see also Dkt. 250 at 11 (Respondent contends in reply that it is sufficient that “a neutral decision maker is available for legal challenges“)). Thus, Respondent‘s interpretation of the regulation does not allow for any judicial review of the factual determination that
“[D]ue process requires a neutral and detached judge in the first instance[.]” Concrete Pipe & Prod. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 617-18 (1993) (quotation omitted); see also Zadvydas, 533 U.S. at 692 (“[T]he Constitution may well preclude granting an administrative body the unreviewable authority to make determinations implicating fundamental rights.” (quotation omitted)). In Boumediene v. Bush, 553 U.S. 723 (2008), which—like the instant matter—involved a non-citizen petitioner, the Supreme Court explained that “[w]here a person is detained by executive order, rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing” and “[t]he habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive‘s power to detain.” Id. at 783 (emphasis added). Accordingly, the Boumediene court found it “constitutionally required” for a habeas court to have “some authority to assеss the sufficiency of the Government‘s evidence against the detainee.” Id. at 786.
It is against the backdrop of this caselaw that Respondent would have to persuade an appellate court that the Constitution allows for a procedure whereby the Department of Homeland Security can detain Petitioner for the rest of his life based on a non-adversarial proceeding with no judicial oversight of the factual findings. Respondent has cited to no cases that support this remarkable proposition—to the contrary, the Supreme Court has “consistently . . . recognized that an individual challenging his detention may not be held at the will of the Executive without recourse to some proceeding before a neutral tribunal
There is good reason for this well-established principle of due process jurisprudence. The inadequacy of the procedures set forth in the regulation, wherein the Department of Homeland Security serves as both prosecutor and judge, are amply demonstrated by the record in this case. As set forth above, on August 9, 2019, Secretary McAleenan certified Petitioner‘s continued detention under both
These allegations, which Respondent contends constitute sufficient evidence to warrant Petitioner‘s indefinite detention, cannot bear meaningful scrutiny. During the course of the instant litigation, it was revealed that Shane Ramsundar, a detainee at the BFDF, was the source fоr the specific allegations regarding Petitioner‘s alleged contacts in Trinidad and Tobago and development of plans to attack American interests in Port Everglades and Trinidad and Tobago. (See Dkt. 196-13). However, Petitioner‘s counsel uncovered evidence that wholly undercuts Ramsundar‘s credibility—ultimately causing Respondent to completely abandon his reliance on Ramsundar‘s claims. Specifically, Petitioner‘s counsel discovered that Ramsundar‘s alien file (“A-file“) contained an eight-
The other allegations of the February FBI Memo fare little better upon inspection. Many of the remaining claims arise from statements made by former BFDF detainee
The Court previously held that Hamed‘s statements had sufficient indicia of reliability to be admissible at the then-anticipated evidentiary hearing, without opining on their persuasive value. (Dkt. 225 at 34-35). However, the Court also noted that there were serious questions regarding Hamed‘s credibility inasmuch as he had been convicted of a fraud-related offense. (Id.). Furthеr, Hamed‘s account of the argument he had with Petitioner differs from the account of Ahmed Abdelraouf (“Abdelraouf“), who was also present during the interaction. Abdelraouf—who was scheduled to give live testimony at the evidentiary hearing before it was cancelled at Respondent‘s request—reported in an interview on January 28, 2020, that Petitioner did not talk about being a follower of any religious group or leader and that he “did not know of [Petitioner] making any threats against any specific person or place.” (Dkt. 169-3 at 4). Accordingly, Hamed‘s statements are at best weak evidence of Petitioner‘s dangerousness. Indeed, Respondent has conceded that these statements, even in combination with the other evidence he intended to present
The February FBI Memo is seemingly also based on statements by former BFDF detainees Mohammed Hirsi (“Hirsi“) and Hector Rivas Merino (“Rivas Merino“). As to Rivas Merino, as the Court explained in concluding that his hearsay statements were insufficiently reliable to be admissible in this proceeding, he claimed to have overhead Petitioner discussing making explosives with another detainee. (Dkt. 225 at 28-29). However, the record revealed that the overheard conversations were in Arabic, a languаge in which Rivas Merino was not fluent; Rivas Merino‘s report was uncorroborated; and he was offered a benefit in exchange for the information. (Id.). Moreover, as Petitioner points out, less than three weeks after Rivas Merino allegedly reported this information, ICE released the detainee with whom Petitioner was allegedly speaking, and the FBI apparently investigated the allegation and closed the file. (Dkt. 248 at 16). This undercuts any conclusion that the government took the report from Rivas Merino seriously.
Turning to Hirsi, a Department of Homeland Security “Intelligence Report” from March 2018 stated that he reported that Petitioner had been trying to “radicalize young Muslims.” (Dkt. 248-11 at 2). However, in a sworn declaration dated March 27, 2020, Hirsi made no allegations whatsoever that Petitioner was trying to recruit or radicalize other inmates at the BFDF, but instead stated only generally that Petitioner had talked about hating the United States. (Dkt. 248-12 at 3-4).
The allegations set forth in the February FBI Memo are also flatly contradicted by an interview conducted with BFDF detainee Mohammad Al Abed (“Al Abed“) on
In sum, the February FBI Memo is an amalgamation of unsworn, uninvestigated, and now largely discredited statements by jailhouse informants, presented as fact. Respondent‘s position, of which he will have to persuade an appellate court, is that it is constitutionally permissible to detain Petitioner for the rest of his life on the basis of this document, without any opportunity for a habeas court (or any other neutral decisionmaker) to test its claims. This Court cannot find that this argument, which runs counter to well-established due process jurisprudence, has even a moderate chance of succeeding.
The Court is also unpersuaded by Respondent‘s contention that “Petitioner failed to take advantage of all the process offered to him” and thus “cannot plausibly complain of a lack of process.” (Dkt. 242-1 at 20). Respondent has failed to cite any cases in his motion to support this argument, which the Court has already rejected. (See Dkt. 55 at 20 n.7).
Respondent also argues that Petitioner cannot prevail on his claim that the regulation deprives him of due process because he “is already subject to supervision conditions due to his criminal conviction.” (Dkt. 241-1 at 20). Not only did Respondent fail to make this argument in his opposition to the Petition, see Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994) (“[I]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.“), he actuаlly took the opposite
For all these reasons, Respondent has not demonstrated that he is likely to succeed on appeal with respect to detention under
2. Detention Under 8 U.S.C. § 1226a(a)
The Court next considers Respondent‘s contention that he is likely to succeed on appeal as to the lawfulness of Petitioner‘s continued detention under
With respect to Respondent‘s contention that the Court lacked the authority to order an evidentiary hearing, it is well-established that in a habeas case “where the material facts are in dispute,” the Court “has the power, constrained only by [its] sound discretion, to receive evidence bearing upon the applicant‘s constitutional claim.” Townsend v. Sain, 372 U.S. 293, 318 (1963), overruled on other grounds, Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992); see also Schriro v. Landrigan, 550 U.S. 465, 468 (2007) (“In cases where an applicant for federal habeas relief is not barred from obtaining an evidentiary hearing by
Respondent‘s argument to the contrary is that the Court was constrained to defer to the Department of Homeland Security‘s conclusions regarding Petitioner‘s dangerousness. (Dkt. 242-1 at 22-23). This argument ignores the plain language of
Moreover, as the Court explained in rejecting this argument the first time Respondent advanced it:
deferential review of the type urged by Respondent is generally reserved for cases where a court is “examining an administrative record developed after an adversarial proceeding,” and “[a]ny process in which the Executive‘s factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the [petitioner] to demonstrate otherwise falls constitutionally short.”
(Dkt. 75 at 13 (alterations in original) (quoting Hamdi, 542 U.S. at 537)); cf. Parhat v. Gates, 532 F.3d 834, 850 (D.C. Cir. 2008) (“We . . . reject the government‘s contention that it can prevail by submitting documents that read as if they were indictments or civil complaints, and that simply assert as facts the elements required to prove that a detainee falls within the definition of enemy combatant. To do otherwise would require the courts to rubber-stamp the government‘s charges, in contravention of our understanding that Congress intended the court to engage in meaningful review of the record.” (quotation omitted)).
Further, in his reply, Respondent acknowledges that
Respondent has further not demonstrated a serious question as to his contention that the burden of proof should have been allocated to Petitioner in the first instance. Respondent is, of course, correct that “the traditional rule in habeas corpus proceedings is that the petitioner must prove, by the preponderance of the evidence, that his detention is
In the case of non-citizen aliens held as enemy combatants at Guantanamo Bay, the D.C. Circuit has approved the imposition of a preponderance of the evidence standard on the government, while leaving open the question of whether a lower standard of proof might be constitutionally adequate. See Ali v. Trump, 959 F.3d 364, 372 (D.C. Cir. 2020). However, the D.C. Circuit has not suggested that it would be constitutionally adequate to put the burden on the petitioner. See, e.g., Al-Bihani v. Obama, 590 F.3d 866, 878 n.4 (D.C. Cir. 2010) (declining to “address whether a some evidence, reasonable suspicion, or probable cause standard of proof could constitutionally suffice for preventative detention of non-citizens seized abroad who are suspected of being terrorist threats to the United States,” but not suggesting that the burden could be placed on the petitioner). Moreover, in other contexts involving preventative detention based on dangerousness, the Supreme Court has made it clear that the burden is on the government. See Foucha v. Louisiana, 504 U.S. 71, 86 (1992) (noting that “in civil commitment proceedings the State must establish the grounds of insanity and dangerousness permitting confinement by clear and
Respondent has cited no cases in which the burden of proof has been placed on a habeas petitioner who has had no prior opportunity to test the allegations аgainst him, and the Court does not find that he has a substantial chance of persuading an appellate court that such a procedure is permissible. Liuksila v. Turner, 351 F. Supp. 3d 166 (D.D.C. 2018), which Respondent cites in his motion papers (see Dkt. 242-1 at 25), is inapposite. Liuksila involved extradition proceedings, wherein “a magistrate judge conducts a preliminary hearing to determine whether the government can justify detaining and extraditing the accused.” 351 F. Supp. 3d at 174. In other words, in the extradition context, there has been an initial, adversarial proceeding during which the government bore the burden of proof, and so the traditional habeas rules apply. See Skaftouros, 667 F.3d at 158 (“[C]ollateral review of an international extradition order should begin with the presumption that both the order and the related custody of the fugitive are lawful.“). Liuksila says nothing about situations such as the one presented here, where there was no meaningful pre-habeas review of the legitimacy of the detention determination.
Respondent has made only a cursory argument in support of his contention that an appellate court will likely reverse based on the Court‘s evidentiary rulings. There were two witnesses who Respondent timely identified as relevant—Rivas Merino and Abbas Raza—that the Court excluded from consideration largely based on their lack of reliability, including because one of the witnesses (Rivas Merino) reported information from a
Respondent also references the Court‘s denial of his belated request to amend his witness and exhibit lists (see Dkt. 242-1 at 26-27), but offers no substantive argument as
For all these reasons, the Court finds that Respondent has not demonstrated a likelihood of success on the merits or even a substantial case that supports imposition of a stay pending appeal. The first factor weighs in favor of denial of the motion.
C. Irreparable Injury
The second factor the Court considers on a motion for a stay pending appeal is whether the moving party will suffer irreparable injury absent such a stay. Respondent argues that irreparable harm will inure to the government absent a stay, even in light of the stringent conditions of supervision imposed by the Court, because: (1) Petitioner represents a threat to national security; (2) Petitioner intends to reside in south Florida, “the very setting of his prior criminal activity“; and (3) Petitioner‘s past conduct renders his
As discussed above, because Respondent has not demonstrated that he has a substantial case for appeal, his burden of demonstrating irreparable harm is correspondingly higher. He has not met it.
With respect to Petitioner‘s allеged dangerousness, the Court has already explained in detail why the allegations in the February FBI Memo are weak and unpersuasive. Far from demonstrating that Petitioner is so dangerous that he must be detained, the February FBI Memo illustrates a more potent danger—the danger of conditioning an individual‘s liberty on unreviewable administrative factfinding. See Boumediene, 553 U.S. at 797 (“Security subsists, too, in fidelity to freedom‘s first principles. Chief among these being freedom from arbitrary and unlawful restraint[.]“).
The record regarding the underpinnings of the June FBI Memo is less developed, in significant part due to the government‘s own failure to timely disclose the witnesses and exhibits it relied on in compiling this document. However, what is before the Court shows that the June FBI Memo suffers from many of the same infirmities as the February FBI Memo, in that it merely asserts as fact a hodgepodge of allegations by jailhouse informants, without any independent corroboration. Cf. Zappulla v. New York, 391 F.3d 462, 470 n.3 (2d Cir. 2004) (noting research showing that “jailhouse informants have a significant incentive to offer testimony against other defendants in order to curry favor with prosecutors and that the proffered testimony is oftentimes partially or completely
Further, in identifying the evidence that he claims supports a finding of dangerousness, Respondent has mischaracterized the Court‘s evidentiary rulings. Respondent states that the Court “excluded from evidence” statements made by Abdelraouf regarding Petitioner, but Respondent effectively withdrew the request to present hearsay testimony of Abdelraouf because he intended to present Abdelraouf as a live witness at the evidentiary hearing. The Court in fact made significant efforts to accommodate the government‘s efforts to secure Abdelraoufs live testimony, including allowing Abdelraouf to testify remotely via video and making the Court‘s staff available, on multiple occasions, to test the video conferencing software. It was ultimately Respondent‘s decision to seek cancellation of the evidentiary hearing, thereby ensuring that Abdelraouf‘s testimony would not become part of the record in this case.
Similarly, Respondent cites to information that the Court excluded from Sean Orlando Smith and Vasily Ranchinsky purportedly supporting a conclusion as to Petitioner‘s dangerousness (Dkt. 250 at 24), but in reality, it was Respondent who effectively excluded consideration of this evidence from the record by failing to identify this proof as part of his witness or exhibit lists in accordance with the Court‘s deadlines. By Respondent‘s own admissions, he did not initially identify these individuаls because he
The government‘s conduct with respect to Petitioner also does not support the conclusion that his release will cause irreparable harm. The Court notes, as it has throughout this matter, that if the government truly thought it had credible evidence that Petitioner was recruiting for ISIS or engaging in the other behavior alleged in the February and June FBI Memos, it would either bring criminal charges or, at the very least, charge Petitioner with a violation of his supervised release. The standard of proof in a supervised released proceeding is only preponderance of the evidence, see United States v. Cunningham, 607 F.3d 1264, 1266 (11th Cir. 2010), the Federal Rules of Evidence do not apply, see United States v. McKenzie, 505 F. App‘x 843, 846 (11th Cir. 2013), and hearsay evidence may be admitted if it is reliable and the court balances “the defendant‘s right to confront adverse witnesses against the grounds asserted by the government for denying confrontation,” United States v. Clay, 743 F. App‘x 366, 369 (11th Cir. 2018) (quotation omitted). Further, there is no question about the constitutionality of such proceedings. That the government has chosen, for unidentified reasons, not to avail itself of this routine and available vehicle for seeking to detain Petitioner seriously undercuts its claims as to his dangerousness and the threat purportedly posed thereby.
The Court also is not persuaded thаt Petitioner‘s criminal convictions show that there is a risk of irreparable harm. Respondent contends that “Petitioner‘s three terrorism-related criminal convictions have informed—and supported—the government‘s decision
The sentencing court imposed a below-Guidelines sentence of 188 months incarceration, with 20 years of supervised release to follow. Hassoun, No. 04-60001-CR-COOKE, Dkt. 1335 at 1-3. While the government successfully appealed the below-Guidelines sentence imposed on Defendant‘s co-defendant Jose Padilla, it did not pursue an appeal of Petitioner‘s sentence. See Jayyousi, 657 F.3d at 1115-19.
The sentencing judge‘s comments at sentencing reflected a clear view that while Petitioner‘s crimes of conviction were serious, they did not warrant a sentence anywhere near the recommended Guidelines sentence of 360 months to life. (Dkt. 248-16 at 4). As the sentencing judge explained:
The crimes here are very serious, but I think it‘s important at this juncture to state what this case is not about. No so-called act of terrorism oсcurred on United States soil. These defendants did not seek to damage United States infrastructure, shipping interests, power plants or government buildings. There was never a plot to harm individuals inside the United States or to kill government or political officials. There was never a plot to overthrow the United States government.
The defendants maintain that their acts were not criminal, but [of] educational and humanitarian nature to inform the world and the Muslim community of the status of Muslims abroad to provide aid for Muslims in need. The jury‘s verdict reject[ed] these arguments and contentions and found that the defendants’ acts were criminal.
What the defendants sought to do was provide support to people sited in various conflicts involving Muslims around Eastern Europe, the Middle East and Northern Africa was found to be criminal. The evidence indicated the defendants sought to provide financial, personnel and material to individuals engaged in armed conflict in these areas. This material support is a violation of the statutes that form the basis of this indictment.
However, there is no evidence that these defendants personally maimed, killed or kidnapped anyone in the United States or elsewhere. Also, the government has pointed to no identifiable victims. Despite this, this behavior is a crime.
(Dkt. 248-16 at 5-6).
Mr. Hassoun is a devout Muslim. Prior to the instant offense, Mr. Hassoun had never been arrested or convicted of a crime. As a youngster, he lived with a Lebanese conflict, and he knew firsthand what happened to a country when internal politics turned violent. His employer and fellow employees describe him as smart, compassionate and a caring human being. He reached out to people in this community here and overseas, often giving of himself personally and financially. Many wrote letters of support to the Court. The plight of Muslims throughout the world pained and moved him. These strong feelings were his motivation to violate the statutes in this case. He knew what it was like to live through armed conflict and religious persecution.
The defendant moved to this country, worked, married and had a family. He worked for Marcom Technologies. His employer and fellow employees spoke highly of him. He was a valuable employee. He worked with many employees of many different religions and ethnicity, and there was never any evidence of conflict between Mr. Hassoun and other employees based upon religious beliefs.
The government intercepted most of Mr. Hassoun‘s telephones, work, home, cell and fax. The interceptions and investigation continued for many, many years. He was questioned and never charged with a crime. The government knew where Mr. Hassoun was, knew what he was doing and the government did nothing.
This fact does not support the government‘s argument that Mr. Hassoun poses such a danger to the community that he needs to be imprisоned for the rest of his life.
(Id. at 7-8 (emphasis added)).
It should also be noted that an incarcerative sentence also recognizes that these defendants will unlikely engage in new criminal conduct, given their age, as they leave the criminal system; that is, as they approach their senior years.
It is also worth noting that Respondent appears to place great emphasis on his arguments concerning
Finally, the Court is not persuaded by Respondent‘s argument, newly asserted in his reply brief, that the government will suffer irreparable harm absent a stay because this Court has somehow intruded on executive authority. As this Court has explained throughout this proceeding, in enacting
D. Harm to Petitioner and the Public Interest
The third factor—the harm to Petitioner that will result from a stay—clearly favors release. “The interest of the habeas petitioner in release pending appeal [is] always substantial[.]” Hilton, 481 U.S. at 777. Respondent does not contest this point, but argues that “[a]lthough Petitioner of course has an interest in avoiding any unlawful restraint, here the public interest outweighs his concerns.” (Dkt. 250 at 25). The Court is not persuaded. Respondent‘s arguments regarding the public interest largely reiterate his arguments regarding dangerousness, which the Court has already considered. For example, Respondent argues that the government cannot assure Petitioner‘s compliance with conditions of supervision and that there is accordingly “a heavy burden on the
For all these reasons, and considering and weighing all the factors, the Court finds that a stay pending appeal is not warranted. However, recognizing the high stakes in this litigation, the Court will issue a brief administrative stay of its order of release. Specifically, the Court stays its order until 12:00 p.m. on Thursday, July 2, 2020. This will afford Respondent the opportunity to seek an emergency stay from an appellate court, and hopefully avoid the logistical difficulties that would result if the machinery of release was set in motion and Respondent then succeeded in obtaining such a stay.
CONCLUSION
For the foregoing reasons, the Court grants the Petition (Dkt. 1) and orders Petitioner‘s release, effective July 2, 2020, at 12:00 p.m., and subject to the conditions of supervision set forth above and agreed upon by the parties. The Court denies Respondent‘s motion for a stay pending appeal. (Dkt. 242). The Court will issue a separate order setting forth additional briefing deadlines with respect to Petitioner‘s outstanding motion for sanctions. (Dkt. 164).
SO ORDERED.
ELIZABETH A. WOLFORD
United States District Judge
Dated: June 29, 2020
Rochester, New York