Four decisions carry most of the weight, and they do not point the same way. Read together they produce a rule that turns less on the danger the person faces than on the door he came through. An immigration case gets a hearing. An extradition case gets a signature. A military transfer gets neither.
Khouzam v. Attorney General (Third Circuit, 2008)
Sameh Sami S. Khouzam, an Egyptian citizen and a Coptic Christian, had been granted relief from removal after an adjudicator found that it was more likely than not that he would be tortured if returned to Egypt. His removal was deferred rather than withheld because there were serious reasons to believe he had committed a murder before leaving Egypt. He was released from custody in 2006.
In 2007 the Department of Homeland Security detained him again and prepared to remove him on the strength of assurances from Egypt that he would not be tortured. The court described what he was given, and the description is the case: “The Government provided no prior notice to Khouzam regarding the diplomatic assurances. Nor did the Government provide Khouzam any opportunity to review the assurances, or to present evidence or arguments challenging the assurances before an IJ, the BIA, or any other body.”
The Third Circuit held that this violated the Due Process Clause. “Because the Government violated the Due Process Clause by terminating Khouzam’s deferral of removal without affording him an opportunity to test the reliability of Egypt’s diplomatic assurances, the termination order was invalid.” The court then described what was required instead: “Prior to removal on the basis of diplomatic assurances, Khouzam must be afforded notice and an opportunity to test the reliability of those assurances in a hearing,” and “The alien must have an opportunity to present, before a neutral and impartial decision-maker, evidence and arguments challenging the reliability of diplomatic assurances proffered by the Government.” The court added that the person “must also be afforded an individualized determination of the matter based on a record disclosed to the alien.”
Two limits are worth noting, because they are often lost when the case is described. The court held that the district court had no jurisdiction over the habeas petition, and vacated the order granting it; the relief came through the petition for review instead. And the court did not hold that assurances from Egypt were categorically unreliable, which was Khouzam’s second argument. It held that he was entitled to make that argument somewhere.
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Munaf v. Geren (Supreme Court, 2008)
Two American citizens held in Iraq by the Multi-National Force sought to block their transfer to Iraqi custody, arguing that transfer was likely to result in torture. The Supreme Court held that the federal courts had habeas jurisdiction but that the petitioners were not entitled to relief.
On the torture allegation the Court said: “Such allegations are of course a matter of serious concern, but in the present context that concern is to be addressed by the political branches, not the Judiciary.” It gave reasons of institutional competence, observing that the political branches “are well situated to consider sensitive foreign policy issues, such as whether there is a serious prospect of torture at the hands of an ally, and what to do about it if there is.”
The Court also recorded two things that limit the holding. It noted the Solicitor General’s statement that it is the policy of the United States not to transfer an individual in circumstances where torture is likely to result, and it expressly reserved a harder case: this, the Court said, “is not a more extreme case in which the Executive has determined that a detainee is likely to be tortured but decides to transfer him anyway.” Justice Souter, concurring, would have extended that reservation further, to “a case in which the probability of torture is well documented, even if the Executive fails to acknowledge it.”
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Omar v. McHugh (D.C. Circuit, 2011)
Returning to the D.C. Circuit after Munaf, Omar argued that the Foreign Affairs Reform and Restructuring Act gave him a statutory right to judicial review of conditions in the receiving country. The court rejected the argument on the text: “By its terms, the FARR Act provides a right to judicial review of conditions in the receiving country only in the immigration context, for aliens seeking review of a final order of removal. The FARR Act does not give extradition or military transferees … a right to judicial review of conditions in the receiving country.”
The court acknowledged the asymmetry this creates and did not regard it as a defect: section 2242(a) “states a broad ‘policy’ that the Executive Branch presumably has a responsibility to follow with respect to all transfers,” while “only immigration transferees may obtain judicial review of conditions in the receiving country before they are transferred.” Congress, the court held, may create a right for one category of transferee without creating it for the others.
This is the decision that establishes the door rather than the danger as the operative fact. Two people facing the same risk in the same country have different rights depending on the legal process that brings them to the border.
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Trinidad y Garcia v. Thomas (Ninth Circuit, en banc, 2012)
An extradition case, decided by a fractured en banc court in a per curiam opinion. The court held that it had jurisdiction, and that as a matter of due process the Secretary of State must consider the extraditee’s torture claim and must not extradite him if she finds it more likely than not that he will be tortured. It described the resulting entitlement narrowly: “An extraditee thus possesses a narrow liberty interest: that the Secretary comply with her statutory and regulatory obligations.”
The remedy is where the case ends up. Because the record contained no evidence that the Secretary had complied, the court remanded so that a declaration to that effect could be supplied. What happens then is set out in the opinion itself: “If the district court receives such a declaration, it shall determine whether it has been signed by the Secretary or a senior official properly designated by the Secretary. If so, the court’s inquiry shall have reached its end.” The court explained that the substantive claim “is foreclosed by Munaf v. Geren,” and that “the doctrine of separation of powers and the rule of non-inquiry block any inquiry into the substance of the Secretary’s declaration.”
The court divided sharply. Judge Berzon, joined by Judge W. Fletcher, concurred in the first five parts but declined to accept “that once the Secretary (or her delegate) meets the procedural due process requirement by submitting a barebones declaration, courts under no circumstances have authority to conduct any substantive review.” Judge Tallman, joined by three colleagues, would have gone the other way entirely, treating the rule of non-inquiry as a complete answer.
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Where this leaves the law
| How the person is being transferred | What review is available | Authority |
|---|---|---|
| Immigration removal after a grant of protection | Notice, and a hearing before a neutral decision-maker at which the reliability of the assurance can be contested, on a record disclosed to the person | Khouzam (3d Cir. 2008) |
| Extradition | Confirmation that the Secretary of State signed a declaration of compliance. No inquiry into whether the underlying judgment was sound | Trinidad y Garcia (9th Cir. 2012) (en banc) |
| Military transfer abroad | No statutory right of review of conditions in the receiving country, and no freestanding constitutional right | Munaf (2008); Omar v. McHugh (D.C. Cir. 2011) |
Two cautions about that table. It states the rule in the circuits that decided these cases, and a circuit that has not addressed the question is not bound by any of them. And it describes the position established by these four decisions, not the position in any later case; a reader relying on it for a live matter should confirm that each decision is still good law in the relevant circuit.
Decisions in the Coalition’s register
The four cases above are the doctrinal spine, and they are older than the removals now being reported. The Coalition’s own register holds the recent orders, read one by one and entered with what each of them decided. See the decisions tagged with assurances, and be aware that the tag is thin: assurances appear more often as a premise in these cases than as the question presented. The nearby categories are usually more productive.
Decisions on third-country designation and decisions on notice reach the same ground from the procedural side, because the argument about whether a person may be sent to a country he has no connection to, and how much warning he must be given first, is the argument about whether he gets to contest what the receiving government has promised. The whole register, organized by question, is here.