Federal Judge Orders Judicial Review of Constitutional Rights In Government's Deportation Efforts

On January 10, 2008, Judge Thomas Vanaskie in the federal district court in the Middle District of Pennsylvania abruptly rejected the Bush administration's arguments by insisting that the federal courts have the power and obligation to ensure people's Constitutional rights even when the government is trying to deport someone.

In the case, Khouzam v. Hogan, No. CV-07-0992 (M.D. Pa. Jan. 10, 2008), Sameh Khouzam with the help of the ACLU desperately rushed to court to urge the judge to stop the government from deporting him back to Egypt, where the courts had previously concluded he would be tortured. Under the Convention Against Torture and basic international human rights law, Congress and the United States have agreed that it would never deport anyone to a country where the person would be tortured. Mr. Khouzam fled Egypt in 1998, fearing as a Christian that he would be tortured. In 2004, the federal courts ruled that he would be tortured and granted him relief under the Convention Against Torture.

The story gets murky in 2006 -- in August 2006, someone in the State Department wrote a letter that at some point they had received assurances from Egypt that suggested Mr. Khouzam would not be tortured if the US sent him back there. In January 2007, DHS decided to terminate CAT relief for Mr. Khouzam, but did not tell him yet. They worked for a few months on travel arrangements so when Mr. Khouzam appeared for one of his routine check-ins with DHS in May 2007, they shocked him by detaining him and telling him they would deport him within 72 hours(!) The ACLU rushed to court and the judge agreed to block the deportation so he could study the issues.

In the January 2008 decision, the judge rejected the government's most dangerous argument -- that no judge could ever review the adequacy of the diplomatic assurance that Egypt gave because as long as DHS thought it was good enough, nobody else can review that decision even if the review would be needed to safeguard basic Constitutional rights. Under that argument, the government could trample on people's essential Constitutional rights by pointing to executive power and discretion. In the case, DHS refused to let the judge see the diplomatic assurances and told the judge to butt out of the determination that the assurances (whatever they heck they might have been) were absolutely sufficient.

The judge pointed out gaping holes in the government's argument: (1) Congress insisted on judicial review of CAT relief so why would it force judges to avoid reviewing when DHS tries to take away someone's CAT relief? (2) Just because the topic happens to touch on foreign affairs does not automatically insulate it from judicial review. (3) the Fifth Amendment demands judicial review of government actions that deprive people of their life, liberty, or property. (4) even though the government has plenary power over immigration law, the courts always have the power to ensure it complies with constitutional limitations.

These last two points are extremely important to preserve judicial review over questionable decisions by the government, DHS, and ICE in deportation matters. They are also entwined in two Third Circuit appeals that urge the courts to exercise their powers to make sure that the government complies with constitutional limitations when they seek to deport an immigrant to his certain death in a way that shocks the conscience due to a risk that the government itself created. The appeals involve the state-created danger doctrine -- especially where the government convinces an immigrant to testify against organized crime, putting the immigrant in danger for the government's benefit, and then shockingly next tries to deport the immigrant to his certain death to the country where the criminals are waiting to murder him.

We'll see how the Third Circuit rules on the state-created danger doctrine. Together with the Khouzam case, they raise important issues on basic Constitutional protections and the need for the courts to exercise basic review -- despite the government's surprising arguments that they can do anything they want (even something unconstitutional) and the courts should have no power to stop them.

Congratulations to Mr. Khouzam and his attorneys -- Amrit Singh, Judy Rabinovitz, Lee Gelernt, Alice Clapman (ACLU Immigrants' Rights Project), Vic Walczak, Mary Catherine Roper (ACLU Pennsylvania), and Morton Sklar (World Organization for Human Rights USA)!