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.
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
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.
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
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
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
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 ...