Decisions

M.D. Pa. January 10, 2008 529 F. Supp. 2d 543; 2008 WL 98545 Third country: None (removal to country of origin)

The writ was granted, the Secretary of Homeland Security’s decision to terminate the court-ordered deferral of removal was vacated, and Khouzam was ordered released forthwith on the conditions of supervision that had been in place before his redetention. The court reached three conclusions. First, diplomatic assurances from states regarded as routinely engaging in torture, such as Egypt, do not per se violate the Convention Against Torture or the Foreign Affairs Reform and Restructuring Act. Second, there was a substantial question of fact whether the government had complied with its own regulations governing removal on a diplomatic assurance. Third, and decisively, the government’s refusal to expose the Egyptian assurance to review by any impartial adjudicator denied due process: “At the core of due process are the requirements of notice and a meaningful opportunity to be heard,” and neither was supplied. The court rejected the government’s position that the requisite opportunity to be heard was furnished by the habeas proceeding itself.

Diplomatic assurances CAT deferral Termination without notice Due process Notice and hearing Impartial adjudicator Compliance with regulations Release from custody Order of supervision

Caution Vacated on jurisdictional grounds. The Third Circuit held on 5 December 2008 that the District Court had no habeas jurisdiction over these claims and vacated this order, while reaching the same result on the merits by granting the petition for review. Cite the Third Circuit decision for the holding; this opinion remains the fuller statement of the reasoning and of the record. Removal here was to the petitioner’s own country, Egypt, not to a third country. The signed order carries a typographical error in its date line, reading “JANUARY, 2007” for 2008.