ADHAM AMIN HASSOUN, Petitioner-Appellee, v. JEFFREY SEARLS, IN HIS OFFICIAL CAPACITY AS ACTING ASSISTANT FIELD OFFICE DIRECTOR AND ADMINISTRATOR OF THE BUFFALO FEDERAL DETENTION FACILITY, Respondent-Appellant.
No. 20-2056-cv
United States Court of Appeals FOR THE SECOND CIRCUIT
DECIDED: JULY 30, 2020
AUGUST TERM 2019; SUBMITTED: JULY 14, 2020; Before: CABRANES, SULLIVAN, and MENASHI, Circuit Judges.
On Appeal from the United States District Court for the Western District of New York
The government moved to stay the release of Adham Amin Hassoun pending its appeal of the order granting his release. The U.S. District Court for the Western District of New York (Wolford, J.) decided that the government was not authorized under
Jonathan Hafetz (Brett Max Kaufman, Charles Hogle, Judy Rabinovitz, Celso Perez, for the American Civil Liberties Union Foundation, New York, NY; A. Nicole Hallett, Supervising Attorney; Jessica Lewis, Stephen Ferro, Rule 46.1(e) Law Students, for the Mandel Legal Aid Clinic, University of Chicago Law Schоol, Chicago, IL; Jonathan Manes, for the Roderick & Solange MacArthur Justice Center, Chicago, IL, on the brief), for Petitioner-Appellee.
Anthony D. Bianco, Senior Counsel for National Security (Ethan P. Davis, Acting Assistant Attorney General; William C. Peachey, Director; Kathleen A. Connolly, Deputy Chief; Steven A. Platt, John J.W. Inkeles, Counsel for National Security, for the Office of Immigration Litigation, United States Department of Justice, Washington, DC; Daniel B. Moar, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, NY, on the brief), for Respondent-Appellant.
Adham Amin Hassoun was held in immigration detention at the Buffalo Federal Detention Facility (BFDF) from October 10, 2017, until July 21, 2020, pending his removal from the United States.1 He is a
Because an alien typically must be removed within ninety days of a final order of removal or be released under supervision,
The other two authorities,
The government moved in both courts for a stay рending appeal to prevent Hassoun‘s immediate release. We granted the government‘s motion by an order issued July 16, 2020, which noted that an opinion would be forthcoming. We explain the reasons for that ruling, concluding that the government made a strong showing that it was likely to succeed on the merits and that it would suffer irreparable harm absent a stay.
BACKGROUND
Hassoun was born in Lebanon in 1962 to Palestinian refugee parents. He was admitted to the United States in 1989 on a non-immigrant visa and was subsequently detained, placed in removal proceedings, and ordered removed for failing to comply with the conditions of his visa. Before he could be removed, Hassoun was taken into custody on federal criminal charges.
The governmеnt charged that between October 1993 and November 2001, Hassoun participated in a conspiracy to murder, kidnap, and maim persons overseas; conspired to provide material support to terrorists; and provided material support
After Hassoun completed his criminal sentence in October 2017, he was transferred to immigration detention under
DHS made requests to Lebanon, the Palestinian Territories, Egypt, Iraq, Somalia, Sweden, and the United Arab Emirates but had not at the time of the government‘s motion been able to obtain travel documents to remove Hassoun.
In May 2018, Hassoun filed a petition for a writ of habeаs corpus, challenging his continued detention under
On February 22, 2019, DHS notified Hassoun of its intent to continue his detention pursuant to
DHS based its invocation of
Five months later, the government certified Hassoun for continued detention under
On December 13, 2019, the district court held that ”
Hassoun IV, 2020 WL 3496302, at *1. The government timely appealed the district court‘s decisions to this court and to the D.C. Circuit.
DISCUSSION
In its motion, the government argues that Hassoun‘s release will “threaten the national security of the United States and the safety of the community.” Gov‘t Mot. 4. This court has discretion to stay Hassoun‘s release, pending аppeal, after considering “(1) whether [the government] has made a strong showing that [it] is likely to succeed on the merits; (2) whether [the government] will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure [Hassoun] ... ; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009). Having considered all four factors, we conclude that the government is entitled to a stay pending appeal.
I
The government has made a strong showing that it is likely to succeed on the merits of its argument that the district court erred in holding that
A
In normal practice, “the court of appeals for the circuit in which the proceeding is held” has jurisdiction to review final orders addressing detention under
Section 1226a(b)(3) governs appeals from final orders “in habeas corpus proceedings described in”
Hassoun nevertheless argues that we should construe
Moreover, when the Federal Circuit “reviews a district court‘s judgment involving” issues outside the Federal Circuit‘s exclusive jurisdiction, it is “guided by the law of the regional сircuit in which that district court sits.” Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059, 1067 (Fed. Cir. 1998). This ensures uniformity in the application of law when a given issue is outside the Federal Circuit‘s exclusive jurisdiction. By contrast, Hassoun‘s reading of
The district court did not see itself as bound by D.C. Circuit law when it ruled on the government‘s invocation of
Mandating the application of D.C. Circuit law to disputes over
This аpproach would contravene the principle that “appellate jurisdiction should normally be known and remain unaffected” throughout “the entire process of filing, pretrial, trial, and post-trial motions” so as “[t]o impart certainty.” Atari, Inc. v. JS & A Grp., Inc., 747 F.2d 1422, 1432 (Fed. Cir. 1984) (en banc), overruled in part on other grounds by Nobelpharma, 141 F.3d at 1068 & n.5. The government did not invoke
Our conclusion that
Like
The text and structure of the Patriot Act support the conclusion that this court has jurisdiction to review the district court‘s
B
The government has made a strong showing of a likelihood of success on its argument that the district court erred in holding that
The first question is easily answered in the affirmative. “The Supreme Court has twice explicitly found [
To determine whether the government has made a strong showing that its construction of
1
Hassoun contends that the Supreme Court‘s interpretation of
In Zadvydas, the Supreme Court construed
Consequently, “the Court‘s method of narrowing”
In promulgating
Indeed, this class of aliens is so narrow that “this is only the second time
The district court thought that Zadvydas — and the Supreme Court‘s adherence to its limiting construction in Clark — did not “[leave] open the possibility for a more narrowly tailored regulation such as the one at issue here.” Hassoun II, 427 F. Supp. 3d at 367-68. We see no inconsistency between the decisions in Zadvydas and Clark and the regulation at issue here. The Supreme Court in Clark applied the same construction to inadmissible aliens that it applied to admissible aliens in Zadvydas so as not to “give the same statutory text different meanings in different cases.” Clark, 543 U.S. at 386. Yet the Zadvydas construction always excluded “terrorism or other special circumstances where special arguments might be made for forms of preventive detention.” Zadvydas, 533 U.S. at 696. So there would be no inconsistency for a court to recognize that, when faced with the special circumstances identified in Zadvydas, the Court‘s construction allows for a different outcome. Although the Court made other remarks that could be construed to support the district court‘s reading of
While judges generally adhere to the same interpretation across cases, the government was entitled to resolve statutory ambiguities differently than the Court had done previously. See Brand X, 545 U.S. at 980.
2
Having determined that prior precedent does not categorically prohibit
An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).
The only remaining question, then, is whether
“[T]he nature of [procedural due process] protection[s] may vary depending upon status and circumstance.” Zadvydas, 533 U.S. at 694; see Hernandez-Carrera, 547 F.3d at 1254 (“[I]t is not at all clear that removable aliens benefit from precisely the same advantages of due process as do citizens or lawful permanent resident aliens.“). Under Mathews v. Eldridge, 424 U.S. 319, 335 (1976), we consider three factors: (1) “the private interest that will be affected by the official action,” (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards,” and (3) “the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
While Hassoun faces the potential of “indefinite detention,” Zadvydas, 533 U.S. at 690, the government has a compelling interest in protecting national security, see Haig v. Agee, 453 U.S. 280, 307 (1981) (“[N]o governmental interest is more compelling than the security of the Nation.“). The regulatory framework features procedural protections to minimize Hassoun‘s risk of being erroneously deprived of liberty. First, the regulation requires the government to provide Hassoun with notice of its intent to detain him under the regulation, a description of the factual basis for the detention, and a reasonable opportunity to examine the evidence and present information on his own behalf.
The district court held that these procedures are inadequate because the procedures “[do] not provide for any review by a neutral decisionmaker.” Hassoun II, 427 F. Supp. 3d at 370. Yet the availability of habeas corpus is “sufficient to satisfy the requirements of the Due Process Clause.” Hernandez-Carrera, 547 F.3d at 1255; see Fay v. Noia, 372 U.S. 391, 402 (1963) (“[H]abeas corpus in the federal courts provides a mode for the redress of denials of due process of law. Vindication of due process is precisely its historic office.“). The regulation is unlikely to be held unconstitutional for lack of a neutral decisionmaker when detainees may seek review of its application in the federal courts.2
Subsequently, in Jones v. United States, 463 U.S. 354, 367-68 (1983), the Supreme Court endorsed the use of the preponderance-of-the-evidence standard for the indefinite confinement of an individual who was acquitted of a criminal offense by reason of insanity. Although there was a “diminished concern as to the risk of error” in part because “the acquittee himself advance[d] insanity as a defense[,] ... the proof that he committed a criminal act” also “eliminate[d] the risk that he [was] being committed for mere ‘idiosyncratic behavior‘” because “[a] criminаl act by definition is not ‘within a range of conduct that is generally acceptable.‘” Id. at 367 (emphasis omitted). Like the requirement of a criminal act in Jones,
The “‘preponderance of evidence’ standard is the traditional standard in civil and administrative proceedings.” Sea Island Broad. Corp. of S.C. v. FCC, 627 F.2d 240, 243 (D.C. Cir. 1980). In Hamdi v. Rumsfeld, 542 U.S. 507, 534 (2004), which dealt with the potentially indefinite detention of American citizens on American soil, a plurality of the Supreme Court held that “the Constitution would not be offended by a presumption in favor of the Government‘s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided.” For that reason, “once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to
Finally, the district court did not consider whether a clear-and-convincing evidence standard was required in light of the “heightened deference to the judgments of the political branches with respect to matters of national security.” Zadvydas, 533 U.S. at 696. Those matters were not at issue in Addington but figure prominently here. For these reasons, there is substantial reason to doubt the district court‘s conclusion that the regulation is invalid because it does not explicitly incorporate the clear-and-convincing evidence standard, and the government is correspondingly likely to prevail.
II
We agree with the government that considerations of irreparable harm and the equities favor a stay of Hassoun‘s release pending appeal. “Where ... special and narrow circumstances are present,” such as the risk of terrorism, “the government‘s interest in preventing harm outweighs the individual‘s constitutionally protected interest in avoiding physical restraint.” Hernandez-Carrera, 547 F.3d at 1251-52 (internal quotation marks omitted).
A
Even though the district court imposed conditions of supervised release intended to ameliorate the harm from Hassoun‘s release, Hassoun IV, 2020 WL 3496302, at *5-6, the government asserts that Hassoun‘s release would still “profoundly burden DHS, the FBI, ICE, and other law enforcement agencies tasked with monitoring Hassoun” and that “‘it is not possible to fully mitigate the threat posed by Hassoun‘s release.‘” Gov‘t Mot. 4 (alteration omitted).
National security concerns “arise in connection with efforts to confront evolving threats in an area where information can be difficult to оbtain and the impact of certain conduct difficult to assess.” Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010). Conclusions about that information therefore “must often be based on informed judgment rather than concrete evidence, and that reality affects what we may reasonably insist on from the Government.” Id. at 34-35. Here, the Acting ICE Director, the Acting Secretary of DHS, and the FBI Director each has concluded that Hassoun‘s release would pose a threat to national security. Even where “the dangerousness of an alien pending removal still may not justify indefinite detention ... it may be considered when determining whether immediate release is the appropriate remedy.” Singh v. Whitaker, 362 F. Supp. 3d 93, 104 (W.D.N.Y. 2019) (citing Zadvydas, 533 U.S. at 685, and Hilton v. Braunskill, 481 U.S. 770, 779 (1987)). Accordingly, we conclude that the government has demonstrated that it would suffer an irreparable injury from Hassoun‘s release absent a stay.
B
“Once an applicant satisfies the first two factors, the traditional stay
Although “[t]he interest of the habeas petitioner in release pending appeal [is] always substantial,” the court must consider whether “there is a risk that the prisoner will pose a danger to the public if released.” Hilton, 481 U.S. at 777. Hassoun is a convicted terrorist who has been ordered removed from the United States, and our court has noted that “even terrorists with no prior criminal behavior are unique among criminals in the likelihood of recidivism, the difficulty of rehabilitation, and the need for incapacitation.” United States v. Meskini, 319 F.3d 88, 92 (2d Cir. 2003). Although Hassoun has a strong interest in his release, the balance of the equities favors granting the government‘s motion for a stay.
CONCLUSION
Because the government made a strong showing that it was likely to succеed on the merits and that it would suffer irreparable harm absent a stay, we **GRANTED** the government‘s motion for a stay pending appeal by an order issued July 16, 2020.
In the interest of judicial economy, any future proceedings on appeal shall be assigned to this panel.