Precedential. The court held that the District Court lacked habeas jurisdiction and vacated its order, but that the court of appeals had jurisdiction over the petition for review, that the rule of non-inquiry did not bar review, and that the government had denied Khouzam due process. It rejected the argument that assurances from Egypt are categorically insufficient, leaving the question to individualized determination. On the merits: “It is obvious that Khouzam was not afforded notice and a full and fair hearing prior to his imminent removal on the basis of diplomatic assurances. In fact, Khouzam was afforded no notice and no hearing whatsoever.” The government had given him nothing but “a cursory three-line letter dated three months after the termination decision had been made,” and beyond its bare assertions the court found “no record supporting the reliability of the diplomatic assurances.” Because the termination order was invalid and he had been taken into custody on the strength of it, he had to be restored to his earlier terms of release. Remanding to the Board of Immigration Appeals, the court set out what due process requires before removal on assurances: notice, an opportunity to present evidence and argument challenging the reliability of the assurances and the government’s compliance with the regulations before a neutral and impartial decisionmaker, and an individualized determination on a record disclosed to the person.
Caution The court did not hold that Egypt’s assurances were unreliable. It held that Khouzam was entitled to a hearing at which to test them, and remanded for that hearing. It rejected the argument that assurances from a state with an egregious record of torture are categorically insufficient. Removal here was to the petitioner’s own country, not to a third country.
Diplomatic assurances CAT deferral Termination without notice Fifth Amendment due process Rule of non-inquiry Habeas jurisdiction REAL ID Act section 1252(a)(4) Petition for review Order of supervision Remand to the BIA
The court's own text
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