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October 20, 1999


The opinion of the court was delivered by: Walls, District Judge.


This matter is before the court on the petition for a writ of habeas corpus brought by Hany Mahmoud Kiareldeen, who, since March 1998, has been in the custody of the Immigration and Naturalization Service (INS) pending the resolution of his removal proceedings. His petition alleges three grounds for release: (1) the petitioner's detention violates the Due Process Clause because it is based on secret evidence that he has not had the opportunity to examine or confront; (2) his continued detention violates his due process rights because the government's evidence consists of uncorroborated hearsay accusations which he has rebutted; and (3) the petitioner must be released from INS custody because the government's evidence concerns his alleged political associations, which are protected by the First Amendment.

The writ is granted on the basis of grounds one and two (Counts I-III of the Petition). Because it is unnecessary to the resolution of this matter, the court does not address the petitioner's First Amendment claim.

Factual Background

Hany Kiareldeen is a Palestinian who has resided continuously in the United States since 1990, when he entered from Israel on a student visa. In 1994, Kiareldeen married Amal Kamal, with whom he had a daughter. That marriage had ended in a bitter divorce. And in 1997, Kiareldeen married an United States citizen, Carmen Negron, who soon after submitted a relative petition to adjust his status to a conditional legal permanent resident.

In March 1998, INS and FBI agents arrested the petitioner and charged him as deportable for overstaying the time period of his student visa after his completion of his studies. He has been detained without bond pending the outcome of the deportation hearing. Those removal proceedings were between August 1998 and February 1999 before Immigration Judge Daniel Meisner ("IJ"). Kiareldeen conceded that he had overstayed his visa, but sought discretionary adjustment of status and mandatory relief pursuant to the asylum provisions of the INA and the United Nations Convention Against Torture.

In opposition to the petitioner's applications for relief, the INS presented classified evidence ex parte and in camera to the Immigration Judge which allegedly demonstrated that Kiareldeen was a suspected member of a terrorist organization and a threat to the national security. Throughout the proceedings, the INS never presented any evidence in open court. According to Judge Meisner, the INS did not call a single witness from the FBI's Joint Terrorism Task Force (the "JTTF"), which produced the unclassified documentary evidence that the petitioner has submitted to this court. At the conclusion of the removal hearings, the IJ granted the petitioner a second hearing of his request for redetermination of his continued detention pending the outcome of the removal proceedings.

On April 2, 1999, the IJ issued two opinions: the first granted the petitioner's request for adjustment of status, and the second allowed his release from custody on $1500 bond. That day, the INS appealed the decision to the Board of Immigration Appeals ("BIA"), which stayed execution of the IJ's release order. Kiareldeen moved to dissolve the stay. On June 29, 1999, a panel of BIA judges by a divided 2-1 decision denied his request for release.

The petitioner has never been charged with violation of any criminal laws. And in July 1999, the FBI closed its criminal investigation. The government has disclosed that it does not intend to reopen the investigation unless it receives new information that Kiareldeen is involved in terrorist activity.


1. Jurisdiction

At the outset, the court must determine whether it can exercise jurisdiction of petitioner's request for habeas corpus relief. The petitioner contends that although direct review by a district court of his claims is barred by the 1996 amendments to the Immigration and Nationality Act (INA), habeas jurisdiction pursuant to 28 U.S.C. § 2241 is preserved under Sandoval v. Reno, 166 F.3d 225 (3rd Cir. 1999). There, the Third Circuit addressed the continuing existence vel non of habeas corpus jurisdiction in the district courts in light of the jurisdictional revocations contained in two recent federal statutes: the 1996 Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), and the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The court reviewed a venerable line of Supreme Court precedents including Ex parte McCardle, 7 Wall. 506, 74 U.S. 506, 19 L.Ed. 264 (1868), Ex parte Yerger, 8 Wall. 85, 75 U.S. 85, 19 L.Ed. 332 (1868), and Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), and determined that they "establish the propositions that courts should not lightly presume that a congressional enactment containing general language effects a repeal of a jurisdictional statute, and, consequently, that only a plain statement of congressional intent to remove a particular statutory grant of jurisdiction will suffice." Id. at 232. The court then considered a number of provisions of IIRIRA and AEDPA, including INA § 242(g), codified at 8 U.S.C. § 1252(g), which provides:

  Exclusive jurisdiction. Except as provided in this
  section and notwithstanding any other provision of
  law, no court shall have jurisdiction to hear any
  cause or claim by or on behalf of any alien arising
  from the decision or action by the Attorney General
  to commence proceedings, adjudicate cases, or execute
  removal orders against any alien under this chapter.

Despite this language, the Sandoval court concluded: "As there is no express reference to jurisdiction under 28 U.S.C. § 2241 in this provision, the rule disfavoring implied repeals requires us to conclude that jurisdiction under § 2241 is preserved under the amended INA § 242(g)." Id. at 236. Finally, the Circuit noted that its decision avoided the serious constitutional problem which would surface if it were to conclude that IIRIRA revoked habeas jurisdiction as well as review under the Administrative Procedures Act: The Court observed that the Suspension Clause of the Constitution would be violated if statutory provisions such as IIRIRA were construed to preclude all review of executive detention.*fn1

The respondents vigorously contest this court's jurisdiction. They rely for support upon Reno v. American-Arab Anti-Discrimination Committee (Reno v. AADC), 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), that "the court of appeals is now the exclusive forum for all immigration matters." In particular, the respondents point to the characterization in Reno v. AADC of INA § 242(b)(9), 8 U.S.C. § 1252(b)(9),*fn2 as an "unmistakable zipper clause" that says, "no judicial review in deportation cases unless this section provides judicial review." AADC, 119 S.Ct. at 943.

Their argument is off target because it asserts that which is not so. Reno v. AADC did not reach the issue of the continued existence of habeas jurisdiction after the 1996 amendments. Notably, the Supreme Court decision expressly recognized a Circuit split concerning this issue and declined to resolve it. AADC, 119 S.Ct. at 942 n. 7. AADC thus cannot be analyzed to address more than the issue of direct judicial review. The respondents mischaracterize its message, inadvertently or otherwise, by claiming that the Court "noted . . . that `habeas relief will also be unavailable,'" when the quotation refers to the contentions of the parties, not the Court's. Id. at 945.

Next, respondents claim that INA § 236(e), 8 U.S.C. § 1226(e), prohibits this court from reviewing the petitioner's claims.*fn3 Citing to the Eleventh Circuit case of Richardson v. Reno (Richardson II), 180 F.3d 1311 (11th Cir. 1999), they contend that the "permanent rule" amendment to the INA of 8 U.S.C. § 1226(e) broadly limits federal court jurisdiction, "regardless of the nature of the proceeding." This argument likewise misses the mark. Although the Sandoval court did not address the jurisdictional effects of 8 U.S.C. § 1226(e), which the present parties agree applies to the petitioner, and reached its decision from the "transitional rules" of IIRIRA and AEDPA, our Circuit's reasoning there applies as well here. Because neither the transitional rules nor the permanent rules expressly refer to 28 U.S.C. § 2241, this court does not find that 8 U.S.C. § 1226(e) repeals habeas corpus jurisdiction by implication.

This court accompanies other courts of this circuit in their determination that district courts retain habeas corpus jurisdiction consonant with the 1996 amendments. See, e.g., Velasquez v. Reno, 37 F. Supp.2d 663 (D.N.J. 1999) (relying on Sandoval rationale, holding that habeas jurisdiction not repealed by implication by 8 U.S.C. § 1226(e)); see also Grant v. Zemski, 54 F. Supp.2d 437 (E.D.Pa. 1999) (same); Hypolite v. Blackman, 1999 WL 499146 (M.D.Pa. July 13, 1999) (finding that habeas jurisdiction preserved after amendment to 8 U.S.C. § 1252(g); concluding after review of recent Circuit decisions that Reno v. AADC "has no impact on Sandoval"); cf. Edwards v. Blackman, 1999 WL 540213 (M.D.Pa. July 22, 1999) (determining that "[s]ince the holding and rationale of [AADC] are contrary to Sandoval, we adhere to the Supreme Court's view"; finding that Suspension Clause not implicated unless the Supreme Court itself is stripped of habeas jurisdiction). Most courts have addressed this issue to examine claims brought by petitioners subject to INA § 236(c), 8 U.S.C. § 1226(c), which requires the Attorney General to detain aliens who have committed certain enumerated criminal offenses. However, this court finds that the historical objective of habeas jurisdiction, to provide a last resort for prisoners to challenge the constitutionality of their detention, also applies with compelling force in these circumstances. After Reno v. AADC, the Third Circuit in Catney v. INS, 178 F.3d 190 (3rd Cir. 1999), explicitly reaffirmed that both statutory and constitutional challenges to detention may still be made by a habeas petition. Id. at 194. Pursuant to Sandoval and Catney, this court concludes that jurisdiction of the petitioner's request for habeas corpus relief is proper.

2. Exhaustion of Administrative Remedies

The respondents had contended that even if the court could otherwise take jurisdiction, the petition should be dismissed because Kiareldeen failed to exhaust his administrative remedies. The petitioner answered that he had sought every available administrative remedy, and had no avenue for relief other than this court.

On October 15, 1999, the BIA issued its final decision, which dismissed the INS' appeal and granted the petitioner's application for adjustment of status. The petitioner has now exhausted all administrative remedies; the respondents' argument is moot.

3. Secret Evidence

The petitioner argues that the INS' use of secret evidence at his bond redetermination hearing before the Immigration Judge, not authorized by statute or regulation, was ultra vires. Furthermore, he asserts that even if the INS' actions were properly authorized, the government's reliance on evidence presented ex parte and in camera to support his detention violated his due process rights under the Fifth Amendment.

To support his claim that the Service's actions were ultra vires, the petitioner points the court to a provision in the Immigration and Nationality Act that countenances the use of confidential information: Subchapter V of the INA establishes special procedures that govern the treatment of purported "alien terrorists." 8 U.S.C. § 1531 et seq. Pursuant to that subchapter, the INS is authorized to present to immigration judges, in camera and ex parte, "any evidence for which the Attorney General determines that public disclosure would pose a risk to the national security of the United States or to the security of any individual because it would disclose classified information." 8 U.S.C. § 1534(e)(3)(A); see also 8 U.S.C. § 1536(a)(2)(B). By negative implication, the petitioner argues that Congress' failure to expressly provide for the use of confidential information in custody hearings must be interpreted as an expression of congressional intent to limit such evidence to the specialized forum of the alien terrorist removal court. The petitioner admits that the regulations governing bond hearings permit an Immigration Judge to base his or her decision upon "any information that is available to the Immigration Judge or that is presented to him or her by the alien or by the Service." 8 C.F.R. § 3.19(d) (1988). However, he asks the court to construe this language to not permit the use of ...

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