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Memorandum in Support of Emergency Motion for Release and Preliminary Injunction
(Filed December 19, 2001)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 99-3458-CIV-LENARD
MAZEN AL NAJJAR,
Petitioner,
vs.
JOHN ASHCROFT, Attorney General, United States Department of Justice, et al.,
Respondents.
____________________________________/
Memorandum in Support of Emergency Motion for Release and Preliminary Injunction
Petitioner Mazen Al Najjar returns to this Court, two years after he filed his initial petition for habeas corpus and complaint, to seek his release once again from unlawful detention by the Immigration and Naturalization Service (INS). His current detention violates both the Immigration and Nationality Act (INA) and the First and Fifth Amendments to the Constitution, for some of the same reasons that his prior detention was unlawful. He seeks his immediate release and a preliminary injunction barring future detention absent newly discovered evidence that he poses either a risk of flight or a danger to the community or national security. To update the underlying facts, Al Najjar has filed a Supplemental Complaint and Renewed Petition for Habeas Corpus contemporaneously with his Emergency Motion.
First, Al Najjar's detention violates the INA and the Due Process Clause because there is no basis in fact for the INS's assertion that he poses a threat to national security. The INA and substantive due process permit preventive detention in connection with the execution of a final order of deportation only where the alien either poses a threat to the community or national security or a risk of flight. Because there is no public record evidence to support the claim that Al Najjar poses a flight risk or a threat to national security or the community, his detention is invalid under the INA and violates substantive due process.
In an official statement explaining its reasons for the re-arrest of Al Najjar, the INS simply repeated the very assertions that had been found factually unsupported on the public record both in its initial attempt to justify Al Najjar's detention in June 1997, and in its attempt to buttress that showing in the two-week remand custody hearing last year. The INS has cited no new information, and has expressly disavowed reliance on the classified evidence that it previously cited to justify detention. Its own chief witness admitted last fall that there was no public record evidence linking Al Najjar to funding or even advocating terrorism. And the Immigration Judge who considered all of the INS's public record evidence found no evidence whatsoever that Al Najjar was associated with the Palestinian Islamic Jihad, or that he posed a threat to national security. Moreover, the INS's allegations concern alleged associations with long-defunct organizations, and cite no evidence to suggest that he poses any current threat. Thus, the INS's detention of Al Najjar is "without reasonable foundation," and he should be released. United States ex rel. Barbour v. District Director, 491 F.2d 573, 577 (5th Cir.), cert.?denied, 419 U.S. 873 (1974)(holding that aliens are entitled to habeas corpus relief where their detention is "without reasonable foundation")(quoting Carlson v. Landon, 342 U.S. 524, 540-41 (1952)).
Second, Al Najjar is being detained for his alleged associations, and as this Court held previously, political association without more is insufficient to establish a threat to national security. Al Najjar is alleged to be associated with two domestic groups that were in turn alleged to be associated with the Palestinian Islamic Jihad. Even if these allegations had not already twice been deemed to be unfounded on the public record, they would not support his detention as a threat to national security, because they do not establish that Al Najjar specifically intended to further any illegal activity.
Third, procedural due process requires that Al Najjar be afforded a meaningful opportunity to confront the evidence used to justify his detention. Here, Al Najjar was afforded no meaningful opportunity to respond. He was arrested with no notice, and the INS simply issued an official public statement advancing assertions that had been rejected in a full and fair hearing. More process is required before the government can deprive an individual of his constitutionally protected liberty, especially where, as here, the INS's public record evidence has twice been found not to justify his detention.
Accordingly, Al Najjar requests the Court to order his immediate release from detention, and to preliminarily enjoin the INS from detaining him again unless it develops new evidence that he poses a current danger to the community or national security or a flight risk, and affords him a meaningful opportunity to defend himself.
In the alternative, Al Najjar seeks relief from the unnecessarily harsh conditions of confinement imposed upon him. During his previous 3? years of detention, Al Najjar was held in a county jail in Bradenton, with all the privileges of the general population, including contact visits from his family, and ordinary recreation, phone, and reading privileges. No security concerns were raised during his prior detention. Nor have any security concerns been raised during the year that he was released. Yet the INS has now detained him in a federal facility far from his home, in solitary confinement, under 23-hour lockdown. He is subject to daily strip searches, with frequent hand-cuffing, and his telephone, visitation, reading, and recreation privileges are sharply limited, far beyond those imposed on the general population. Such draconian measures are excessive in relation to any legitimate government purpose, and therefore violate the Fifth Amendment to the Constitution.
Statement of Facts
This Court is familiar with the facts through May 2000, which are set forth in its opinion of May 2000 declaring Al Najjar's prior detention unconstitutional. Al Najjar v. Reno, 97 F. Supp.2d 1329 (S.D. Fla. 2000), vacated as moot, Al Najjar v. Ashcroft, ___ F.3d ___, 2001 U.S. App. Lexis 25304 (11th Cir., November 28, 2001). Accordingly, this Statement will simply update the Court on developments since its May 2000 decision.
In August and October 2000, pursuant to this Court's May 2000 order, Al Najjar had a full and fair hearing before an Immigration Judge. Tr. of Remand Custody Hearing, Exh. 1 to Supp. Comp. After two weeks of trial on the public record, the IJ ruled that "there are no facially legitimate and bona fide reasons to conclude that Respondent is a threat to national security.'" IJ Decision (Oct. 27, 2000) at 49, Exh. 2 to Supp. Comp. The IJ characterized the INS's evidence as "extremely insubstantial," id. at 40, and found that "the Court has not been presented with any evidence linking Respondent to the PIJ." Id. at 49.
Pursuant to this Court's order, the IJ then heard the INS's classified evidence in camera and ex parte. The IJ ultimately refused to consider the classified evidence, because the INS failed to present it in such a way as to afford Al Najjar a meaningful opportunity to respond. IJ Decision (Dec. 6, 2000), Exh. 3 to Supplemental Complaint. Finding no factual basis to justify his detention, the IJ ordered Al Najjar's release on bond.. Id.
The INS sought a stay of Al Najjar's release before the Board of Immigration Appeals. The BIA unanimously denied the stay, finding that the INS was unlikely to prevail on appeal. BIA Decision (Dec. 11, 2000, Exh. 4 to Supplemental Complaint. The INS Commissioner then asked the Attorney General herself to bar Al Najjar's release. The Attorney General also declined to do so, and authorized Al Najjar's release. Dec. 15, 2000 AG Order, Exh. 5 to Supplemental Complaint. In August 2001, the INS abandoned its administrative appeal to the BIA from the IJ's decision to release Al Najjar on bond.
From December 2000 until November 24, 2001, Al Najjar was a free man. During that period, he was a law-abiding and productive member of the community. He spent time with his three young daughters, who had lost 3? years of life with their father. And he volunteered at the local private school that his daughters attend and at his local mosque. Al Najjar cooperated fully with the INS during this time, and the INS does not allege that he engaged in any activities while released on bond that threatened national security.
The Court of Appeals for the Eleventh Circuit decided Al Najjar's petition for review of his deportation order on July 18, 2001. Al Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir 2001). The court affirmed the BIA's deportation order against Al Najjar for overstaying his visa. Al Najjar petitioned for rehearing, but the court denied the petition on October 25, 2001. On November 13, 2001, the court therefore issued the mandate in connection with Al Najjar's petition for review. This had the effect of lifting the stay of deportation that the court had granted pending its review of the deportation order. Thus, Al Najjar is now subject to a final order of deportation. He is, however, preparing a petition for certiorari to the Supreme Court.
There is no reasonable likelihood that Al Najjar will in fact be deported in the foreseeable future. He does not even have a valid travel document at this time. He has applied for a travel document from Egypt, and he has also applied for entry to the United Arab Emirates, the country to which he was ordered deported. However, the UAE grants only temporary visas, and as a result does not grant visas to Palestinians with Egyptian travel documents, because they have no country to which they can return. Statement of Consulate General of the State of Palestine, Dubai, U.A.E., Exh. 7 to Supp. Comp.
On November 24, 2001, federal officials, without warning or notice to Al Najjar or his counsel, arrested Al Najjar outside his home and took him into custody. The INS justified its re-arrest of Al Najjar by issuing an official public statement stating that Al Najjar is now under a final deportation order, and that "[t]he INS regularly detains individuals who have a final order of deportation while it prepares for their removal from the United States if they are a flight risk, a threat to the community or a threat to national security. Al Najjar is being detained under this standard." DOJ Statement, Nov. 24, 2001 (emphasis added), Exh. 6 to Supplemental Complaint. The official statement asserted that Al Najjar had "ties to terrorist organizations" through his leadership positions in two domestic groups ? the Islamic Concern Project (ICP) and the World and Islam Studies Enterprise (WISE). It asserted that these groups were "front organizations that raised funds for militant Islamic-Palestinian groups such as the Palestinian Islamic Jihad (PIJ) and Hamas," and that ICP had petitioned "for other known terrorists to obtain visas to enter the United States." Id.
These were the same assertions that the government advanced to justify its detention of Al Najjar in its initial bond hearing in 1997 and again in the remand custody hearing last fall. On both occasions the IJ found that no public record evidence supported Al Najjar's detention. After the remand hearing, in which the INS substantially supplemented its initial public record presentation, see Tr. of Remand Custody Hearing, Exh. 1 to Supp. Comp., the IJ ruled that there was "no evidence before the Court that demonstrates that either [ICP or WISE] was a front for the PIJ." IJ Decision, Oct. 27, 2000, at 48 (Exh. 2 to Supplemental Complaint). On the contrary, he found "that WISE was a reputable and scholarly research center and the ICP was highly regarded." Id. And he concluded that "Respondent's involvement with WISE and ICP amounted to cooperation with the organizations in lawful activities." Id. at 49.
The IJ also flatly rejected the INS's assertion that Al Najjar raised money for terrorist organizations through WISE and ICP. Indeed, the INS's own principal witness, Special Agent William West, "admitted that there is no open source evidence that Respondent ever sent money to a terrorist organization or that he ever advocated terrorism." Id.?at 39. Despite the fact that the INS had seized the entire contents of the WISE and ICP offices, including financial records and over 500 videotapes of the two organizations' activities, the INS offered "no evidence that indicates that Respondent engaged in fundraising for the PIJ through WISE," id. at 41, through ICP, id. at 38, or indeed, "for any organization." Id . at 41.
In addition, the IJ dismissed the INS's allegations that WISE and ICP had facilitated the entry of members of terrorist organizations. Id. at 41-45. The IJ found that the INS offered no evidence that anyone who came to the United States for purposes of WISE or ICP activities came here illegally. Id. at 45. And the INS offered no evidence that anyone who came here at the behest of WISE or ICP engaged in any fundraising or other illegal activities for any terrorist groups while here.
Finally, the ICP and WISE went out of existence in 1993 and 1995, respectively. As such, the only allegations that the INS advances regarding Al Najjar regard his alleged past associations with organizations that have been long defunct. The government instituted a grand jury investigation into ICP and WISE, but never filed any criminal charges against anyone in connection with that investigation.
Despite the fact that he was previously held for 3? years without incident at a county jail in Bradenton, Al Najjar is now being held in Federal Correctional Complex ("FCC") Coleman, in solitary confinement, under a 23-hour lockdown. He was initially denied any visits except from one of his lawyers, and denied any phone calls. He is now permitted only limited non-contact visits with his family, while the general prison population is entitled to more frequent visits which consist of contact visits. He is strip-searched daily, hand-cuffed frequently, and has no access to books, television, radio, or newspapers.
On November 28, 2001, the court of appeals dismissed as moot the pending appeal from this Court's May 2000 decision declaring Al Najjar's detention on secret evidence and political associations invalid. Al Najjar v. Ashcroft, ___ F.3d ___, 2001 U.S. App. Lexis 25304 (11th Cir., November 28, 2001). The court of appeals determined that once the final order of deportation issued, the question decided by this Court in May 2000 ? whether he was being detained lawfully while his deportation proceedings were pending ? no longer presented a live dispute, because the INS has separate statutory authority to detain after a final order of deportation is entered. Accordingly, the court dismissed the appeal, and as is customary when intervening events moot an appeal, vacated this Court's prior decision. The court of appeals also vacated the Immigration Judge's decision on remand, even though the INS had voluntarily abandoned its administrative appeal from that decision.
Argument
I. Al Najjar's Detention Violates the INA and Substantive Due Process Because He Neither Poses a Threat to National Security Nor a Threat to the Community, and Is Not a Flight Risk
Al Najjar is entitled to habeas corpus relief if his detention is "without reasonable foundation." See United States ex rel. Daniman v. Shaughnessy, 117 F.Supp. 388, 390 (S.D. NY 1953)(ordering release of alien subject to final order of deportation where there was no reasonable foundation for the claim that he was a risk of flight); Bartholomeu v. District Director, 487 F.Supp. 315, 321 (D. Md. 1980)(holding that decision to detain alien after final order of deportation is entered is subject to habeas review for abuse of discretion, and that discretion is abused if the detention is "without reasonable foundation"); see also Barbour, 491 F.2d at 578 (habeas should be granted where INS detains aliens "without reasonable foundation"); Danh v. Demore, 59 F.Supp.2d 994, 1002 (N.D. Cal. 1999)("Under an abuse of discretion standard, the Attorney General's decision to deny bond can always be reviewed if arbitrary or capricious.").
Under the applicable statute, 8 U.S.C. ?1252(c) (1995), as well as substantive due process, detention is permissible only if Al Najjar poses a danger to the national security or community, or a risk of flight. Here, there is no factual basis for the INS's claim that Al Najjar poses a threat to national security, and therefore his detention is "without reasonable foundation," and he must be released.
A. The INA Authorizes Al Najjar's Detention Only if He Poses a Risk of Flight or a Danger to the Community or National Security
As the government itself acknowledges, Al Najjar can be held only if he is "a flight risk, a threat to the community or a threat to national security." Exh. 6 to Supp. Comp. The statute governing Al Najjar's detention is 8 U.S.C. ?1252 (1995), because Al Najjar was in pending deportation proceedings on April 1, 1997. That statute authorizes detention of aliens who are subject to final orders of deportation under the same standard that applies to detention while deportation hearings are pending.
Section 1252(a), the provision at issue in this Court's prior decision, provides that any alien taken into custody "pending a determination of deportability ... may, in the discretion of the Attorney General and pending such final determination of deportability, (1) be continued in custody; or (2) be released under bond ...; or (3) be released on conditional parole." That provision has long been construed to require release of the alien unless "he is a threat to national security ... or ... a poor bail risk." Matter of Patel, 15 I & N Dec. 666 (1976); see Al Najjar v. Reno, 97 F. Supp.2d at 1345.
Congress authorized detention after a final order of deportation has been entered under a separate but identical statutory standard. Section 1252(c) provides that when an alien is subject to a final order of deportation, "at the Attorney General's discretion, the alien may be detained, released on bond ... or released on such other condition as the Attorney General may prescribe." This standard is materially indistinguishable from the standard that governs detention while deportation proceedings are pending, and therefore similarly bars detention in the absence of evidence that the alien poses a threat or a flight risk. See United States ex rel. Daniman v. Shaughnessy, 117 F. Supp. at 390 (interpreting ?1252(c) in the same manner as ?1252(a), and holding that "no convincing argument has been advanced to me that these two sections (almost identical in language) should be accorded different interpretations"). Similarly, for removal proceedings instituted after April 1, 1997, 8 U.S.C. ?1231(a)(6) (2000) authorizes detention of aliens ordered removed on ordinary immigration charges beyond 90 days only where the alien poses a threat to the community or is unlikely to comply with the order of removal. While this law does not apply here because Al Najjar's deportation hearing was pending on April 1, 1997, it reaffirms that there are only two legitimate reasons for detention in the post-final-order setting ? to protect the community and to ensure an alien's appearance for deportation. See Zadvydas v. Davis, 121 S. Ct. 2491, 2499 (2001).
The court of appeals recently declared the appeals from this Court's prior ruling moot, reasoning that the authority to detain after a final order of deportation is separate from the authority to detain while deportation proceedings are pending. Al Najjar v. Ashcroft, ___ F.3d ___, 2001 U.S. App. Lexis 25304. That is true ? ?1252(a) governs detention while proceedings are pending, while a separate provision, ?1252(c), governs detention after a final order of deportation has been entered. But the factual showing required under both provisions is the same ? aliens may be denied bond only if they pose a flight risk or danger to the community.
B. To Permit Detention in the Absence of Evidence of a Flight Risk or Danger to the Community Would Violate Substantive Due Process
The statutory interpretation set forth in Section A, above, is compelled by the rule that statutes must be construed, where possible, to avoid serious constitutional questions. Zadvydas v. Davis , 121 S. Ct. 2491, 2498 (2001). As Zadvydas expressly recognized, even aliens subject to a final deportation order retain a constitutionally protected liberty interest in being free from confinement. Id. at 2500-01. This fundamental right to liberty is not absolute, of course, but can be restricted only in accordance with both procedural and substantive due process. Id. at 2499; see also Salerno v. United Sates, 481 U.S. 739, 746 (1987); Foucha v. Louisiana, 504?U.S. 71, 80 (1992); Kansas v. Hendricks, 521 U.S. 346, 356 (1997).
Preventive detention violates substantive due process where it is excessive in light of the government's legitimate regulatory purposes. Salerno, 481 U.S. at 747. In the post-deportation-order setting, only two legitimate interests justify preventive detention ? the interest in ensuring that an individual will appear for his deportation, and the interest in protecting the community from dangerous individuals. Zadvydas, 121 S. Ct. at 2499. In the absence of evidence that the individual will either abscond or pose a danger to others, therefore, detention is excessive in relation to the government's legitimate regulatory purposes, and violates substantive due process.
On just such reasoning, many courts have declared mandatory detention of criminal aliens without an individualized hearing on danger or flight risk a violation of substantive due process. The courts have split on the constitutionality of mandatory detention. See, e.g., Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999)(upholding mandatory detention in case of alien who conceded removability and had no claim for relief); Okeke v. Pasquarell , 80 F.Supp.2d 635 (W.D. Tex. 2000)(following Parra). However, Parra?is both indistinguishable and no longer good law. It held that an alien subject to a final order of deportation has no liberty interest in being free, but the Supreme Court's decision in Zadvydas squarely rejected that conclusion, holding that aliens subject to final deportation orders do retain a liberty interest in being free of custody. 121 S.Ct. at 2499. In addition, Parra is distinguishable because the alien there had the "keys to his cell," in that he could have agreed to return to Mexico at any time, whereas here, Al Najjar is a stateless Palestinian with no right to return anywhere. These courts have reasoned that aliens have a fundamental liberty interest in remaining free of physical custody, a conclusion strongly reaffirmed by the Supreme Court in Zadvydas. 121 S.Ct. at 2499. The courts have then reasoned that the government has a legitimate regulatory interest in detaining aliens only when the aliens pose either a danger to the community or a flight risk, and that to detain pursuant to an irrebuttable presumption where those factors may not in fact be present violates substantive due process. For the same reason, to detain Al Najjar in the absence of any factual basis showing that he poses a current threat to national security or a flight risk violates due process.
C. The INS's Claim that Al Najjar Poses A Threat to National Security is Without Reasonable Foundation
The INS has no reasonable foundation to claim that Al Najjar is either a flight risk or a danger to others. The only claim the INS asserts in its official statement justifying Al Najjar's new detention is the same claim it presented, without success, in the initial bond hearing in 1997, and again in the remand custody hearing last fall ? namely, that he poses a threat to national security because of his alleged associations with the Palestinian Islamic Jihad. Exh. 6 to Supp. Comp. The only allegations that the INS asserts to support its claim, however, have been squarely rejected in a full and fair hearing. Exhs. 1, 2 to Supp. Comp. Moreover, the INS also failed in 1997 to justify Al Najjar's detention on the public record; the IJ ruled then that the public record did not warrant detention, but that the classified evidence presented in camera did. June 23, 1997 IJ Dec., Exh. A to Verified Pet. for Habeas Corpus. The INS cites no new public record evidence to support its re-arrest of Al Najjar, and expressly disavows any reliance on classified evidence. Exh. 6 to Supp. Comp. Thus, it relies solely on public record evidence that has twice been deemed insufficient to support its claims.
Moreover, the INS's allegations regarding Al Najjar concern only his past associations with two long-defunct groups. It makes no claim that Al Najjar is currently involved in any activity or associations that threaten the national security or community. Nor does it claim that Al Najjar engaged in any conduct raising national security concerns while he was released on bond from December 2000 through November 2001. Detention is justified only if Al Najjar poses a "current threat." Ngo v. INS, 192 F.3d at 398. The INS has pointed to absolutely no evidence to suggest that Al Najjar poses a threat today.
The INS does not even contend that Al Najjar poses a flight risk. It does not advance that contention in its official statement explaining the current detention, Exh. 6 to Supp. Comp., nor did it advance that contention in the remand custody hearing that took place last fall. Al Najjar has always appeared for immigration proceedings, has maintained a stable residence in Tampa for many years, and, as the IJ found in 1997, is a well-established member of the community. June 23, 1997 IJ Dec., Exh. A to Verified Pet. for Habeas Corpus. Moreover, given his stateless status and the "terrorist" label that the government has attached to him, his deportation is "a remote possibility at best," Zadvydas, 121 S. Ct. at 2499, and in that setting, the Supreme Court has called the government's "flight risk" concern "weak or nonexistent." Id. In addition, Al Najjar is willing to submit to whatever reasonable reporting requirements the INS deems necessary to ensure his appearance for deportation.
Courts have ordered the release of aliens on habeas corpus where, as here, the INS seeks to detain them after a final order of deportation without evidence that they are a flight risk or a danger to the community. In Daniman, 117 F. Supp. 388, the court exercised habeas corpus review of an alien held subject to a final order of deportation. The court refused to "'construe the statute to give the Attorney General unbridled license to exercise his discretion in whatever arbitrary or capricious way he might see fit.'" Id. at 390 (quoting U.S. ex. rel. Yaris v. Esperdy, 202 F.2d 109, 112 (2d Cir. 1953)). It found that in the absence of evidence that the alien "if released on bond, will not be available for deportation," the detention was "without a reasonable foundation," and therefore ordered his release. 117 F. Supp. at 391; see also? Bartholomeu v. District Director, 487 F. Supp. at 321.
In reaching its result, the court in Daniman relied on findings of a prior district court that had reached the same determination when the issue was whether the alien should be detained pending his deportation hearings. Id. Here, too, a judge has twice heard the INS's public record evidence, and twice found it insufficient to justify detention without bond. Last fall, the IJ concluded that "there are no facially legitimate and bona fide reasons to conclude that Respondent is a threat to national security.'" Exh. 2 to Supp. Comp. at 49. The transcript of that hearing, including the admissions of the INS's own chief witness, fully support that conclusion. Exh. 1 to Supp. Comp. The INS has come forward with no new facts, but merely re-alleges the same, factually unfounded assertions. Moreover, even if those allegations were true, they do not show that Al Najjar poses a "current threat" requiring incarceration, or that his prior release on bond in any way affected the national security. Accordingly, the INS's detention of Al Najjar is "without reasonable foundation," an abuse of discretion under the INA, and violates Al Najjar's substantive due process rights. Daniman , 117 F. Supp. at 390; Barbour, 491 F.2d at 578.
II. Al Najjar's Detention Violates The INA Because it Is Based on Political Association
As this Court held in its prior decision, mere association with a terrorist organization is insufficient as a statutory matter to establish that an alien is a "threat to national security" justifying denial of bond. Al Najjar v. Reno, 97 F. Supp.2d at 1360-62. The INS's own guidance memorandum, D. Ct. Docket Entry ("DE") 4, Exh. I, corroborates this view. Yet the government's detention of Al Najjar is predicated solely on allegations of political association, without more.
While the BIA has not defined "threat to national security" for purposes of detention, the INA employs the same term as a statutory bar to asylum and withholding of deportation. 8 U.S.C. ?1158(b)(2)(A)(iv). The INS has interpreted that provision to mean that mere association with a group, even a designated foreign terrorist organization, is not sufficient to establish a threat to national security barring asylum or withholding of deportation. Office of the Deputy Commissioner, "AEDPA Implementation Instruction #3: The Effects of AEDPA on Various Forms of Immigration Relief" at 3-6 (Aug. 6, 1996)(DE 4, Exh. I); see?also Matter of Kiareldeen, A77-025-332 (April 2, 1999, EOIR, NJ)("generally, mere membership in or affiliation with a terrorist organization, absent the commission or planned commission of a terrorist act, does not constitute a basis for a finding of ineligibility under INA ?212(a)(3)(B)")(DE 4, Exh. J), aff'd (BIA Oct. 15, 1999)(DE 4, Exh. K); Matter of Rodriguez-Majano, 19 I. & N. Dec. 811, 814-15 (BIA 1988)("mere membership in an organization, even one which engages in persecution, is not sufficient to bar one from relief [from deportation], but only if one's action or inaction furthers that persecution in some way"). Membership in a terrorist organization is also not a basis for deportation under the "national security" deportation provisions. See 8 U.S.C. ?1227(a)(4)(engaging in terrorist activity is a deportable offense, but membership in terrorist organization is not). If members in a terrorist organization are free to live here permanently, membership alone cannot be sufficient justification to deprive an alien of his liberty.
Moreover, as this Court previously held, the INA does not authorize detention as a national security threat based on "mere membership" in a terrorist organization. Al Najjar v. Reno, 97 F.Supp.2d at 1360-62. When the INA made membership in the Communist Party a deportable offense, the Supreme Court interpreted the statute to require proof of more than "mere membership." See, e.g., Gastelum-Quinones v. Kennedy, 374 U.S. 469, 472-73 (1963); Rowoldt v. Perfetto, 355 U.S. 115, 120 (1957). If mere membership was insufficient to deport when the INA explicitly made membership a ground for deportation, this Court properly held, mere membership is insufficient to establish a threat to national security today, when membership is not even a deportable offense.
In petitioner's view, even a showing of "meaningful association" would not be sufficient to detain on national security grounds. The "meaningful association" standard was developed as an interpretation of an immigration statute that treated membership as a deportation-worthy threat without more. But today's INA tolerates membership in terrorist organizations, including meaningful membership. In 1990, Congress repealed the McCarran-Walter Act, which authorized deportation for membership alone, and instead enacted a statute focused on whether aliens have "engaged in terrorist activity." Under the current INA, then, a threat to national security is not established merely by showing that an individual is a member ? even a meaningful member ? of a terrorist organization. If Congress has chosen to allow meaningful members to remain here, meaningful membership cannot be sufficient to justify detention.
III. Al Najjar's Detention Violates the First and Fifth Amendments Because it Is Based on His Alleged Political Associations
The INS's detention of Al Najjar for his alleged political association also violates his First and Fifth Amendment right of association. Aliens residing here are protected by the First and Fifth Amendments. As the Supreme Court has long recognized, aliens in the United States are entitled to the protections of all those provisions of the Bill of Rights not restricted to citizens. Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953). Neither the First nor the Fifth Amendment "acknowledges any distinctions between citizens and resident aliens." Id.
The First and Fifth Amendments bar guilt by association, and therefore prohibit any action against Al Najjar based on alleged political associations absent evidence that he specifically intended to further illegal ends. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 920 (1982); Healy v. James, 408 U.S. 169, 185-86 (1972). The INS never even alleged, much less proved, that any of Al Najjar's alleged associations were undertaken with the requisite specific intent, and therefore detaining him on that basis violates his constitutional right of association.
The Supreme Court developed the "specific intent" standard in a long line of cases involving association with the Communist Party. In those cases, the government argued that it could punish individuals for their association with or support of the Communist Party, because Congress had specifically found that the Communist Party had illegal ends, engaged in terrorism and sabotage, and directly threatened our national security. The Supreme Court accepted Congress's findings, but nonetheless repeatedly held that because the Communist Party also engaged in legal activities, Communist Party association could be a basis for adverse government action only where the government showed that the individual had "specific intent to further [the Party's] illegal aims." Robel, 389 U.S. at 262; Scales v. United States , 367 U.S. 203, 229 (1961).
Under these precedents, Al Najjar's detention violates the First and Fifth Amendments unless Al Najjar's alleged associations were specifically intended to further illegal ends. The government has not even alleged such specific intent, much less presented any evidence to support such a claim.
IV. Al Najjar's Detention Violates Procedural Due Process Because He Was Not Afforded Any Opportunity to Defend Himself
Al Najjar's detention also violates procedural due process. He has been afforded no meaningful opportunity to defend himself and he was detained without any notice or warning. Indeed, the District Director wholly ignored the successful presentation Al Najjar made during the two-week trial last fall before the IJ, and made no attempt to justify his actions in light of Al Najjar's showing and the IJ's findings at that hearing. See Tr. of Custody Remand Hearing, Exh. 1 to Supp. Comp.; October 27 IJ Opinion, Exh. 2 to Supp. Comp.
Under Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the Supreme Court held that to assess whether a government procedure satisfies procedural due process claims, courts must balance the private individual's interest, the risk of error from the procedures used, and the government's interest. In Landon v. Plasencia , 459 U.S. 21 (1982), the Supreme Court held that Mathews applies to immigration procedures, stating unequivocally that "[i]n evaluating [a due process challenge] in any case, the courts must consider the [ Mathews factors]." 459 U.S. at 34 (emphasis added).
Here, Al Najjar's interest in being free of physical custody could not be more weighty. "Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause." Foucha v. Louisiana, 504 U.S. at 80; see?also Kansas v. Hendricks, 521 U.S. at 356 (same). As a result, "commitment for any purpose?constitutes a significant deprivation of liberty that requires due process protection." Foucha, 504 U.S. at 80 (emphasis added). See also: United States v. Salerno, 481 U.S. at 755 ("In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception."); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) ("Without doubt, [liberty] denotes . . . freedom from bodily restraint"). That interest is especially strong here because Al Najjar's deportation is not likely in the foreseeable future, and therefore his detention could well be indefinite.
The second Mathews v. Eldridge factor focuses on the likelihood of error. The government has a legitimate interest in detaining aliens subject to final deportation orders if they pose a risk of flight or a threat to national security or the community. But without a fair process for determining whether those factors are present, error is highly likely. Indeed, because of the unusual circumstances of this case, one does not have to speculate about the possibility of error. When a full and fair hearing was held, it resulted in an unequivocal determination that "there are no facially legitimate and bona fide reasons to conclude that Respondent is a threat to national security.'" IJ Decision (Oct. 27, 2000) at 49, Exh. 2 to Supp. Comp. That determination was upheld by the BIA and the Attorney General herself in rejecting the INS's request for stay of Al Najjar's release. Yet now the District Director has simply reasserted the very charges that the IJ, the BIA, and the Attorney General found were unsupported after a two-week hearing.
Third, the only conceivable government interest in denying Al Najjar any hearing is administrative efficiency. It is undoubtedly more efficient to detain aliens without going through a fair process designed to distinguish those who need to be detained from those who need not be detained. But the statute requires that the Attorney General exercise his discretion in determining whether an alien in Al Najjar's situation should be detained, released on bond, or released under conditions. Since the statute demands an individualized determination, a hearing should be provided to inform that determination. Yet respondents have provided Al Najjar no hearing, and have wholly ignored the results of the two hearings they did hold.
Two courts have held that procedural due process entitles aliens in Al Najjar's situation ? subject to a final order of deportation ? to a custody hearing before an independent immigration judge. In Cabreja-Rojas v. Reno, 999 F. Supp.493 (S.D.N.Y. 1998), the district court held that an alien who had been convicted of an aggravated felony and subjected to a final order of deportation was entitled to a hearing before an independent decision maker to determine whether he should be detained or released on bond. Similarly, in Rivera v. Demore, 1999 U.S. Dist. Lexis 11015 (N.D. Cal. 1999), the district court found that "absent an impartial decisionmaker, the risk that petitioner may be deprived of his liberty interest in freedom from confinement is substantial." Id. at *22. That is certainly the case here, given the District Director's adversarial posture in this case, and the rejection of his assertions by the IJ, the BIA, and the Attorney General herself. Accordingly, Al Najjar is entitled to a hearing before an independent adjudicator regarding whether he poses a risk of flight or a danger to the national security or community.
V. The Conditions of Al Najjar's Detention Are Excessive and Violate the Fifth Amendment
If the Court finds the INS's denial of release on bond to be lawful, Al Najjar also challenges the conditions of his detention. Immigration detention is permissible only to serve the INS's legitimate interests in (1) ensuring that persons are available for deportation and (2) protecting the community and national security. Zadvydas, 121 S.Ct. at 2499; cf. Salerno, 481 U.S. at 747. Immigration detention cannot be used to punish in any way. Wong Wing v. INS, 163 U.S. 228 (1896). Accordingly, unless Al Najjar's current conditions of detention are reasonably related to the INS's legitimate interests, they are unconstitutional.
The only interest the INS has asserted is an interest in protecting the national security. Yet none of the extreme conditions imposed on Al Najjar are necessary to protect the national security. First, Al Najjar was held for more than 3? years under far less severe conditions, without any undermining of national security. Under his prior detention, he was free to make unrestricted phone calls, to have contact visits with his family, to have a wide range of reading materials, and to enjoy the privileges generally available to the rest of the prison population. He was not held in solitary confinement, 23-hour lockdown, or subjected to frequent strip searches. Because these additional measures are excessive in relation to the government's interest in protecting national security in Al Najjar's case, they are unconstitutional.
Second, as noted previously, the only allegations (putting aside that they have all been found to be unsupported) the INS has made about Al Najjar's activities concern his past associations with two long-defunct domestic groups. The INS has never alleged that Al Najjar has taken any independent action on his own to further terrorism or terrorist organizations. Nor has it alleged that he has taken any action of any kind to further terrorism or threaten the national security since ICP and WISE were closed many years ago. And perhaps most importantly, it has not alleged that he engaged in any security-threatening associations or activities while out on bail between December 2000 and November 2001. Absent any information showing that detaining Al Najjar in a less restrictive environment would threaten national security now, the conditions of his detention are excessive and unconstitutional.
Conclusion
For all the above reasons, Al Najjar seeks his immediate release from custody, and a preliminary injunction against further detention absent new evidence showing that he poses either a current risk of flight or a current threat to the community or national security. In the alternative, he challenges the conditions of his confinement, and seeks an order compelling the INS to detain him in the least restrictive manner necessary to further its legitimate goals.
Respectfully Submitted,
David Cole, Esq.
Georgetown University Law Center
600 New Jersey Avenue NW
Washington, DC 20001
(202) 662-9078
(202) 662-9408 (fax)
Randall C. Marshall, Esq.
Florida Bar No. 181765
American Civil Liberties Union
Foundation of Florida, Inc.
4500 Biscayne Boulevard, Suite 340
Miami, FL 33137
(305) 576-2337
(305) 576-1106 (fax)
Joseph C. Hohenstein, Esq.
Nationalities Service Center
1300 Spruce Street
Philadelphia, PA 19107
(215) 893-8400
(215) 735-9718 (fax)
Nancy Chang, Esq.
Center for Constitutional Rights
666 Broadway ? 7th Floor
New York, NY 10012
(212) 614-6420
(212) 614-6499 (fax)
Ira J. Kurzban, Esq.
Florida Bar No. 225517
Kurzban Kurzban Weinger & Tetzell
2650 SW 27 Avenue
Miami, FL 33133-3003
(305) 444-0060
(305) 444-3503 (fax)
Martin B. Schwartz, Esq.
Florida Bar No. 880371
Law Office of Martin B. Schwartz
Premier North Executive Building
3816 West Linebaugh Avenue, Suite 401
Tampa, FL 33624
(813) 269-7421
(813) 269-7562 (fax)
Certificate of Service
I certify that on this 19th day of December 2001, a true and accurate copy of the forgoing document has been furnished by facsimile transmission and by overnight delivery to:
David W. Ogden, Esq.
Christopher C. Fuller, Esq.
Douglas E. Ginsburg, Esq.
U.S. Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
(202) 616-9777 (fax)
and by hand delivery to:
Guy Lewis, Esq.
Dexter Lee, Esq.
U.S. Attorney's Office
99 NE 4th Street
Miami, FL 33132
(305) 530-7139 (fax)
______________
Randall C. Marshall
