Khouzam v. Attorney General of the U.S.
549 F.3d 235 (3d. Cir. 2008)

  • Kouzam came to the US from Egypt. The Egyptian government informed the US that Kouzam was suspected of murder, and asked for him to be returned.
  • Kouzam was detained by the US, but he applied for asylum on the basis that he would be subject to torture upon his return.
    • See the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
  • The Immigration Court denied Kouzam's asylum request.
  • The Appellate Court reversed and granted asylum.
    • The Appellate Court found that Khouzam was not eligible for asylum because there were serious reasons to believe that he had murdered someone in Egypt.
      • See 8 U.S.C. 1158(b)(2)(A)(iii) which says that asylum or withholding of removal (aka deportation) may be granted if "there are serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States before the alien arrived in the United States."
    • However, the Court found that under 8 CFR. 1208.17(a) the removal may be deferred if there is a likelihood of torture. Therefore the Court deferred Khouzam's removal.
      • See also the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), (8 U.S.C. 1231).
  • Khouzam was released, but a while later he was taken into custody again and told by the Department of Homeland Security (DHS) that he would be removed back to Egypt.
    • Khouzam was told that the State Department had received assurances that Khouzam would not be subject to torture if returned.
    • Khouzam received no notice or hearing on the matter.
  • Khouzam filed a petition for a writ of habeas corpus challenging his removal.
    • Khouzam argues DHS violated certain statutes and the Due Process Clause by failing to provide him a hearing to test the reliability of the diplomatic assurances; that diplomatic assurances from Egypt are categorically unreliable; and that DHS failed to comply with relevant regulations.
    • DHS argued that Federal courts lack jurisdiction to consider Khouzam's claims; that Khouzam's claims are non-justiciable; that Khouzam received all of the process to which he was entitled; and that DHS complied with all relevant regulations.
  • The Trial Court granted Khouzam's request. DHS appealed.
    • The Trial Court found that DHS violated the Due Process Clause of the 5th Amendment by failing to give Khouzam notice and an opportunity to be heard on the sufficiency of Egypt's diplomatic assurances.
  • The Appellate Court vacated and remanded.
    • The Appellate Court found that Khouzam's case was justicable.
      • DHS argued that their decision was a non-justicable political question. However, the Court looked to Baker v. Carr (369 U.S. 186 (1962)), which listed six factors for determining if something was a political question. The Court found that since none of those factors was present, Khouzam's case did not present a political question.
      • DHS argued that their decision was a non-justicable because the Rule of Non-Inquiry prevents courts from evaluating the fairness and humaneness of another country's criminal justice system. However, the Court found that only applied to extradition cases. Khouzam was simply being deported for not having a valid visa, he was not being extradited. Therefore the Rule of Non-Inquiry did not apply.
        • The Court noted that Munaf v. Geren (128 S.Ct. 2207 (2008)) arguable extended to Rule of Non-Inquiry beyond extradition, but the Court found that the facts of Munaf were very unusual and should not apply in the case against Khouzam.
      • DHS argued that the decision to terminate Khouzam's deferment was not a final order of removal, and so the courts couldn't consider it. However, the Court found that since DHS had taken all the steps they intended to take before Khouzam was deported, their decision was final enough to be reviewable by a court.
    • The Court found that Khouzam was not entitled to habeas relief.
      • The Court found that 8 U.S.C. 1252(a)(4) (the READ ID Act) removes habeas jurisdiction in this type of situation.
    • However, the Court found that Khouzam had been denied due process.
      • The Court deferred to State Dept.'s determination that the Egypt's guarantee was sufficient.
      • However, the Court found that Khouzam had a 5th Amendment right to due process before he could be removed on the basis of the termination of his deferral of removal.
      • The Court found that Khouzam was not afforded notice and a full and fair hearing prior to his removal. He did not get to argue on his behalf, and he didn't even get to see Egypt's diplomatic assurance.
      • The Court remanded to the Board of Immigration Appeals in order to ensure that Khouzam was afforded due process before he may be removed on the basis of diplomatic assurances. The Court chose not to define what procedures would be required, but just generally found that some procedures would be needed to meet due process.