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Judge’s Decision a Landmark Victory
for Due Process and the Rule of Law, Says ACLU
SCRANTON, PA – In
the first decision of its kind, a federal judge today ordered the government to
stop the deportation of Egyptian national Sameh Khouzam based on a secret and
unreliable “assurance” from the Egyptian government that it will not torture him
upon his return. The judge called for Khouzam’s immediate release from jail
under reasonable conditions of supervision and granted his habeas corpus
petition. The American Civil Liberties Union, which filed a lawsuit on Khouzam’s
behalf, applauded the judge’s ruling.
“This is a significant victory for
due process and the rights of all people – citizens or not – to be free of
torture,” said Amrit Singh, a staff attorney with the ACLU Immigrants’ Rights
Project. "It is also a stinging rejection of the government’s attempts to
deprive the judiciary of its constitutional obligation to conduct meaningful
review in the face of unilateral assertions of executive power.”
Stating that
Khouzam “made a credible showing that he had been the victim of torture at the
hands of Egyptian law enforcement,” Judge Thomas I. Vanaskie of the U.S.
District Court for the Middle District of Pennsylvania soundly rejected the Bush
administration’s claim that the executive branch has unfettered authority to
remove Khouzam. Judge Vanaskie noted that removing Khouzam based on diplomatic
assurances without court review would render the procedures established for
seeking protection under the Convention Against Torture “a farce.” He added,
“Not even the President of the United States has the authority to sacrifice on
the alter [sic] of foreign relations the right to be free from
torture.”
Sameh Khouzam, a Christian who came
to the United States in 1998 fleeing religious persecution in Egypt, was granted
protection from deportation under the Convention Against Torture (CAT) in 2004
after a federal appeals court found that he would likely be tortured if sent
back to Egypt. Despite this finding, as well as State Department reports showing
that Egypt routinely engages in torture, the U.S. government tried to summarily
deport Khouzam to Egypt based on “diplomatic assurances” the U.S. claims to have
received from the Egyptian government that it asserts are “sufficiently
reliable” to protect him from torture.
Ratified by the U.S. in 1994, and
implemented by domestic legislation, the Convention Against Torture prohibits
the U.S. from transferring a person “to another State where there are
substantial grounds for believing that he would be in danger of being subjected
to torture.” The U.S. government is using diplomatic assurances – in Khouzam’s
case and others – to circumvent its treaty obligations, and transferring
individuals to foreign countries without judicial review.
“This decision
stands as a sharp rebuke to the government’s assertion of unilateral and
unchecked authority,” said Judy Rabinovitz, a senior attorney with the ACLU’s
Immigrants’ Rights Project. “The court recognized that the right to be free of
torture is a fundamental right that applies to noncitizens as well as citizens,
and that the government cannot return someone to a country without a procedure
that satisfies due process.”
In Khouzam’s case, neither he nor his
lawyers have seen the Egyptian assurances that are the basis for terminating his
CAT protection. Nor has the U.S. government offered any explanation for why
these assurances are deemed sufficiently reliable to protect Khouzam from
torture. Indeed, Khouzam did not receive any notice that his CAT protection was
being terminated until May 29, when, upon appearing for a routine check-in with
immigration authorities, he was taken into detention and provided with a
one-paragraph explanation from Julie Myers, Assistant Secretary of Immigration
and Customs Enforcement, informing him that he could be removed within 72 hours.
Last June, Judge Vanaskie issued an emergency stay of Khouzam’s removal,
shortly after Khouzam was informed that his CAT protection had been terminated
and his removal was imminent. That stay remained in place pending the outcome of
the court proceedings. The U.S. government, however, has opposed the court’s
involvement in this case, repeatedly arguing that the executive branch has
unfettered authority to determine that the diplomatic assurances are
sufficiently reliable to remove Khouzam, and that the federal courts lack
jurisdiction to review its decision.
“As today’s decision shows, this
administration cannot simply eliminate the role of the courts in reviewing the
government’s actions,” said Lee Gelernt, a senior staff attorney at the ACLU’s
Immigrants’ Rights Project.
Khouzam is currently detained in the York
County Prison in Pennsylvania. When Khouzam first came to the U.S. in 1998, he
was immediately placed in immigration detention based on allegations by the
Egyptian authorities that he was wanted in Egypt on a murder charge. Khouzam
denies those allegations, and to date, the Egyptian authorities have produced
little evidence to support this charge. Nonetheless, Khouzam was imprisoned by
U.S. immigration authorities for the next six years while he challenged his
removal and pursued relief under the Convention Against Torture, and for an
additional two years after the U.S. Court of Appeals for the Second Circuit
ruled in his favor in February 2004. Finally, in February 2006, a federal
district court ordered his release from detention. Since that time, and prior to
his re-detention on May 29, Khouzam was living and working in Pennsylvania as
controller of a real estate company. A large circle of well-wishers in his
church community have been advocating to prevent Khouzam’s deportation and
secure his release.
Judge Vanaskie’s decision is available at:
www.aclu.org/immigrants/asylum/33580lgl20080110.html
The
U.S. State Department has documented widespread Egyptian persecution and
discrimination against Christians and other religious minorities, as well as
widespread use of torture in Egypt. A State Department report on the matter is
available at:
www.state.gov/g/drl/rls/hrrpt/2006/78851.htm
Senator
Robert Casey, Jr. (D-PA) sent a letter to Homeland Security Director Michael
Chertoff supporting Khouzam and denouncing Egypt’s diplomatic assurances. That
letter is available at:
www.aclupa.org/downloads/CaseytoChertoffonKhouzam.pdf
Congressman Joseph Pitts (R-PA) also sent a letter to Secretary of
State Condoleezza Rice requesting Khouzam’s deportation be cancelled. That
letter is available at:
www.aclu.org/immigrants/gen/29982prs20070604.html
Attorneys
representing Khouzam are Singh, Rabinovitz, Gelernt and Alice Clapman of the
ACLU’s Immigrants’ Rights Project, Vic Walczak and Mary Catherine Roper of the
ACLU of Pennsylvania, and Morton Sklar of World Organization for Human Rights
USA.
Additional documents related to this case, including the ACLU’s
brief, are available at: www.aclupa.org/egyptiantorture