Third Circuit requires review in diplomatic assurances cases.

AuthorCrook, John R.

In December 2008, the U.S. Court of Appeals for the Third Circuit ruled that the executive branch does not have sole authority to determine, prior to removing detainees to countries with records of engaging in torture, the sufficiency and reliability of receiving governments' assurances that they will not face torture. Instead, such assurances, along with the reasons for finding them sufficient, are subject to examination in administrative proceedings and, ultimately, to judicial review.

The case involved Sameh Khouzam, a Coptic Christian from Egypt who entered the United States in 1998 and sought asylum on the ground that he risked religious persecution in Egypt. Khouzam, who was convicted in absentia in Egypt of murdering a woman, alleged that he was tortured while in custody in Egypt. In 2004, he was granted deferral from removal under the Convention Against Torture (CAT). (1) The Court of Appeals for the Second Circuit found "serious reasons" to believe that Khouzam had committed a homicide before leaving Egypt, but deferred his removal, concluding that he was more likely than not to face torture if he was returned. (2)

U.S. immigration authorities took Khouzam into custody in May 2007, informing him that his deferral of removal had been terminated based on diplomatic assurances from Egypt that he would not be tortured. Khouzam brought a habeas corpus action seeking to block removal, arguing that he would face torture in Egypt and that removal would violate U.S. obligations under the CAT and its U.S. implementing legislation. Before the U.S. District Court for the Middle District of Pennsylvania, the government did not disclose either the assurances that it had received or its reasons for regarding them as sufficient, contending instead that the executive branch was solely responsible for assessing such assurances under the CAT's implementing legislation. In January 2008, the district court ruled that the failure to disclose the assurances and to allow judicial review of their adequacy was contrary to the implementing legislation and that it also denied Khouzam due process. The court granted Khouzam's habeas corpus petition and ordered his release. (3)

The government appealed. On appeal, the Court of Appeals for the Third Circuit reversed and vacated the lower court's grant of habeas corpus relief. (4) It concluded, however, that the Department of Homeland Security's decision to terminate Khouzam's deferral of removal was a final...

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