Khouzam v. Attorney General of the United States

Court of Appeals for the Third Circuit
549 F.3d 235 (2008)

ELI5:

Rule of Law:

The Fifth Amendment's Due Process Clause requires that an alien who has been granted deferral of removal under the Convention Against Torture be afforded notice and a hearing to challenge the reliability of diplomatic assurances before the government can terminate that deferral and remove the alien.

Facts:

Sameh Sami S. Khouzam, a citizen of Egypt and a Coptic Christian, boarded a plane in Egypt bound for New York on February 10, 1998.
While Khouzam was in transit, Egyptian authorities informed the U.S. State Department that he had allegedly committed a murder shortly before his departure.
U.S. officials cancelled Khouzam’s visa, and he was taken into custody upon arrival for lacking proper documentation.
In prior legal proceedings, it was established that it was more likely than not that Khouzam would be subjected to torture if he were returned to Egypt.
As a result of this finding, Khouzam's removal was deferred, and he was released from custody in 2006.
On May 29, 2007, when Khouzam reported to an ICE facility as required, he was re-detained without any prior notice.
The Department of Homeland Security (DHS) informed Khouzam that his deferral of removal had been terminated and he faced imminent removal based on diplomatic assurances from the Egyptian government that he would not be tortured.

Procedural Posture:

Upon his arrival in 1998, Sameh Sami S. Khouzam was detained and removal proceedings were initiated against him.
In proceedings that concluded in 2004, the U.S. Court of Appeals for the Second Circuit denied Khouzam asylum and withholding of removal but found him eligible for relief under the Convention Against Torture (CAT), granting him deferral of removal.
After being detained for eight years, Khouzam filed a habeas corpus petition in the District of New Jersey, which was granted in 2006, leading to his release.
After being re-detained in 2007, Khouzam filed an emergency habeas petition in the U.S. District Court for the Middle District of Pennsylvania and a separate petition for review in the U.S. Court of Appeals for the Third Circuit.
The District Court granted Khouzam’s habeas petition, ruling that the DHS had violated his due process rights, and ordered his release.
The Government appealed the District Court's decision to the Third Circuit, which consolidated the appeal with Khouzam’s pending petition for review.

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Issue:

Does the Due Process Clause of the Fifth Amendment require the government to provide an alien, who has been granted deferral of removal under the Convention Against Torture, with notice and an opportunity to be heard before terminating that deferral based on diplomatic assurances?

Opinions:

Majority - Rendell, Circuit Judge

Yes, the Due Process Clause requires the government to provide an alien with notice and an opportunity to be heard before terminating deferral of removal based on diplomatic assurances. While the relevant statutes and regulations are silent on the procedure for using such assurances, this silence does not override the fundamental constitutional requirements of due process. The court reasoned that aliens in removal proceedings are entitled to due process when a statutory right, such as deferral of removal under the Convention Against Torture (CAT), is at stake. Due process in this context demands (1) fact-finding based on a record disclosed to the alien, (2) a reasonable opportunity for the alien to present evidence and arguments, and (3) an individualized determination by a neutral decision-maker. Khouzam was afforded none of these protections; the DHS terminated his deferral in a secret, unilateral process, providing no notice, no hearing, and no opportunity to challenge the reliability of Egypt's assurances. This complete lack of process was found to be inherently prejudicial, rendering the termination of his deferral invalid.

Analysis:

This case establishes a significant procedural safeguard for aliens granted protection under the Convention Against Torture. It affirms that the Executive Branch's power in immigration matters, even those touching on foreign relations and diplomatic assurances, is constrained by the Due Process Clause. The decision prevents the government from unilaterally revoking life-or-death protections based on secret assurances from the very country feared by the alien. This precedent forces the government to implement transparent procedures allowing aliens to challenge the reliability of such assurances, thereby ensuring a level of judicial oversight in what was previously a purely executive determination.

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