ADHAMAMINHASSOUN, Appellee-Petitioner, v. No.20-5191 … · 1 day ago · noononJuly 2,2020,petitionerAdhamAminHassoun,a three-timeconvictedterrorist ... USCACase#20-5191 Document#1849825

USCA Case #20-5191 Document #1849825 Filed:07/01/2020 Page 1 of 27

APPELLANT’SEMERGENCYMOTIONFORSTAY PENDINGAPPEAL

ACTIONREQUESTEDBY 12:00PMJULY 2, 2020

ADHAMAMINHASSOUN,

JEFFREY SEARLS, in his official capacity as

Acting Assistant Field Office Director and

Administrator, Buffalo Federal Detention Facility,

JAMESP.KENNEDY,JR.

UnitedStates Attorney

Western Districtof New York

Appellee-Petitioner,

Appellant-Respondent.

[NOTYET SCHEDULEDFORORALARGUMENT]

INTHE UNITEDSTATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

v.

JOSEPHH. HUNTAssistant Attorney General

WILLIAMC. PEACHEYDirector

KATHLEENA. CONNOLLYDeputy Chief,National Security &

AffirmativeLitigationUnit

ANTHONY D.BIANCOSenior Counsel for NationalSecurityDistrictCourt SectionOffice of ImmigrationLitigationU.S.Departmentof Justice

STEVENA. PLATTJOHN J.W. INKELES

Counsel for NationalSecurity

No.20-5191


INTRODUCTION

This Court should stay pending appeal the district court’s final judgment

ordering the Departmentof Homeland Security (DHS) to release from custody, by

noonon July 2, 2020,petitionerAdhamAminHassoun,a three-timeconvictedterrorist

who has been orderedremovedfrom the UnitedStates,who indisputablyhas no right

to remainin this country,who theDirectorof the FederalBureauof Investigation(FBI)

has determinedis a national-securitythreat, and whose continueddetentionhas been

certified, in accordance with federal law authorizing preventive detention for

profoundlydangerousaliens,by theActingSecretaryofHomelandSecurityas necessary

for national security. The Court should also expedite this appeal and enter an

administrativestay of the district court’s judgment while the Court considers this stay

request.

Counsel for the parties met and conferred regarding this motion on June 30,

2020. Counselfor Hassounagreedto an administrativestay to allowfor the following

agreed briefingschedule:Hassounwill respondto the motionby 5 p.m.EST,July 10,

2020, and the government will file a reply by 5 p.m. EST, July 15, 2020. Hassoun

otherwiseopposes a stay.

Federal law authorizes the Secretary to detain an alien whom the Secretary

certifies as havingengagedin terrorist activity and to continueto detain that alien “if

release of the alien will threaten the nationalsecurity of the UnitedStates or the safety

of the communityor any person.” 8 U.S.C.§ 1226a(a)(6).The ActingSecretary has, in

1


accordancewith that provisionand in lightof theFBIDirector’sconsideredassessment

of Hassoun’s dangerousness,certified that Hassoun’s release will threaten national

securityor the safetyof the community. That decisionwas well grounded. As the FBI

DeputyDirectordetermined,Hassoun’s“releasewould threaten the national security

of the UnitedStates and the safety of the community.” June 5, 2020FBIMemo.(Dkt.

253-2).

Althoughthe ExecutiveBranchis entitledto significantdeferencein thiscontext,

the district court ruled that the Acting Secretary’s certificationand the FBIDirector’s

assessmentdidnot justify Hassoun’scontinueddetention. The court believedthat the

governmentcouldnot rely solely on the determinationsof the Acting Secretary,Acting

ImmigrationandCustomsEnforcement(ICE)Director,andFBIDirectorand Deputy

Director, but rather that the government needed to carry a clear-and-convincing-

evidenceburden,at an evidentiaryhearing, to justify Hassoun’scontinueddetention.

The court then excludedevidencethat the governmentneededto make this burden.

The district court’s judgment rests on profounderrors of law and risks serious

harmto the UnitedStates and the public. A stay pendingappeal is warranted.

First,the districtcourt erredinholdingthat the recordfailed to justifyHassoun’s

detentionand that an evidentiaryhearingwas necessary. The administrativerecord—

including the Acting Secretary’s certification—conclusively justified Hassoun’s

detentionunder§ 1226a. That statute,whichauthorizescontinueddetentionif “release

of the alien will threaten the nationalsecurity of the UnitedStates or the safetyof the

2


community or any person,” 8 U.S.C. § 1226a(a)(6),is satisfied because the FBI has

concludedthat Hassoun’s release “wouldthreaten the nationalsecurity of the United

States and the safety of the community.” June 5, 2020FBIMemo.4. That is the end

of the matter,and the districtcourt was wrong to requirean evidentiaryhearing.

Second, the district court erred in placing the burden of proof on the

governmentandsetting a clear-and-convincing-evidencestandard. The traditionalrule

is that the habeas petitionermust establish that his detention is illegal. Nothing in

§ 1226a suggests a departure from this rule. Even if the burden were on the

government, a burden-shifting framework is more appropriate, which, once the

governmentputs forth credibleevidencethat the petitionermeets the relevantcriteria,

shifts the burden “to the petitioner to rebut that evidence with more persuasive

evidence that he falls outsidethe criteria.” Hamdiv. Rumsfeld,542 U.S.507,534(2004).

Third, the district court erred in excluding critical evidence. The government

sought to present statements considered in the FBI’s threat assessment of Hassoun.

This evidencewas criticalbecauseit supported—indeeditwas referredto in—theFBI’s

threat assessment. Yet the court improperlyexcluded the evidence as impermissible

hearsay. Ina habeasproceeding,hearsayevidence“is alwaysadmissible”;by excluding

this evidence, the court erred and so never considered the weight this important

evidencewas due. See Al-Bihaniv. Obama,590 F.3d 866,879-880(D.C.Cir.2010).

Considerationsof irreparableharm and the equities strongly favor a stay. The

FBIhas concludedthat Hassoun’s release would threaten the nationalsecurity of the

3


United States or the safety of the community. See June 5, 2020 FBIMemo. Given

Hassoun’sdangerousnessand the need to mitigatethe threat he poses,his release will

profoundly burden the law enforcementagencies tasked with monitoring Hassoun.

The FBI has warned that “it is not possible to fully mitigate the threat poses by

[Hassoun’s]release.” See GlasheenDecl.¶ 8 (Dkt.242-1).

This Court should grant a stay to maintain the status quo while this Court

considers and resolves the important legal questions presented and to avert the

profoundharmsthat couldresult if the district court’s judgment takes effect.

STATEMENT

Legal Background.This case involves two sets of authorities for detaining

aliens who have been orderedremovedfrom the UnitedStates.

The first authority is a statute that permits preventivedetention for dangerous

alienswho havebeenorderedremoved,8 U.S.C.§ 1226a. Section1226aauthorizesthe

Secretaryof HomelandSecurityto detainany alien whomthe Secretarycertifies,under

§ 1226a(a)(3), as being “described in” various terrorism-related inadmissibility

provisionsor being “engagedin any other activitythat endangersthe nationalsecurity

of the United States.” 8 U.S.C. § 1226a(a)(1), (3). (The district court in this case

recognizedthat § 1226a(a)(3)’sfactual requirementis satisfiedwith Hassoun’scriminal

conviction. Jan. 24, 2020 Order(Dkt.75).) Section1226a(a)(6),in turn, providesthat

“[a]n alien detained solely under [§ 1226a(a)(1)]who has not been removed under

section 1231(a)(1)(A)of this title [the general authorityauthorizingremovalafter that

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alien has been ordered removed], and whose removal is unlikely in the reasonably

foreseeablefuture,may be detainedfor additional periodsof up to six monthsonly if

the release of the alien will threaten the national security of the United States or the

safety of thecommunityor any person.” Id.§ 1226a(a)(6).Thus,to authorizedetention

under§ 1226a(a)(6),the Secretarymustdeterminethat the alien’s release “will threaten

the nationalsecurityof the UnitedStatesor thesafety of thecommunityor any person.”

Id. The Secretarymust review hiscertificationevery six months. Id. § 1226a(a)(7).

The second authority is a regulation that permits preventive detention for

dangerous aliens who have been ordered removed, 8 C.F.R. § 241.14(d). That

regulationwas issuedunder the detentionauthorityprovidedby 8 U.S.C.§ 1231(a)(6),

which provides that an alien “may be detained beyond the [default 90-day] removal

period”ifthe alien is determinedto be a risk to the community. The regulationpermits

the detentionofan alienwhen:(1) the alien isdescribedincertainterrorism-or national-

security-relatedinadmissibilityprovisions;(2) the alien’s “release presents a significant

threat to the nationalsecurityor a significant risk of terrorism”;and (3) there are “[n]o

conditions of release can reasonably be expected to avoid the threat to the national

securityor the risk of terrorism.” 8 C.F.R. § 241.14(d)(1)(i)-(iii).

Factual and ProceduralBackground.Hassoun was born in Lebanon to

Palestinianparents. BernackeDecl.(Dkt.17-1),¶ 4. He was admittedto the United

States in1989as a nonimmigrantvisitor and later changedhis status to a nonimmigrant

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student. Id. Hefailedto complywith the requirementsof his studentvisa,and in 2002

was orderedremoved. Id. ¶¶ 4-5.

Before he could be removed, Hassoun was taken into custody on criminal

charges, including Conspiracy to Murder, Kidnap, and Maim Persons in a Foreign

County;Conspiracyto ProvideMaterialSupport for Terrorism;and MaterialSupport

to Terrorists. Id. ¶ 7; Judgment,UnitedStates v. Hassoun,No.04-cr-60001(S.D.Fla. Jan.

22, 2008) (Dkt.13-3). The indictmentalleged that “it was the purposeand object of

the conspiracyto advanceviolentjihad, includingsupportingandparticipatinginarmed

confrontationsin specific locationsoutside the UnitedStates,and committingacts of

murder,kidnapping,and maimingfor the purposeof opposingexistinggovernments.”

United States v. Jayyousi, 657 F.3d 1085, 1105 (11th Cir. 2011) (appeal in Hassoun’s

criminal case). Hassounwas convicted and found to have engaged in this criminal

conduct beginning in 1993 and continuingbeyond October 26, 2001. Id. at 1091-92.

“[T]herecordshow[ed]that the governmentpresentedevidencethat [Hassounand his

co-defendants] formed a support cell linked to radical Islamists worldwide and

conspiredto sendmoney,recruits,and equipmentoverseas to groups that [they]knew

used violence in their efforts to establish Islamic states.” Id. at 1104. “[I]n finding

[Hassounand his co-defendants]guilty, the jury rejectedthe ...premisethat they were

only providingnonviolentaid to Muslim communities.” Id. at 1115. Hassounwas

sentencedto 188monthsinprison. Judgment,Hassoun,No.04-cr-60001(S.D.Fla.Jan.

22, 2008).

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FollowingHassoun’sreleasefromprison inOctober 2017,ICEdetainedhimin

Batavia,NewYork,under§ 1231(a)(6). BernackeDecl.¶ 8; Hassounv. Sessions,No.18-

cv-0586,2019WL 78984,at *1(W.D.N.Y.Jan. 2, 2019). The district court concluded

that there was no significant likelihood of Hassoun’s removal in the reasonably

foreseeablefuture (whichthe SupremeCourt has concludedto be a limit on detention

under§ 1231(a)(6),see Zadvydas v. Davis,533 U.S.678, 701(2001)),and that, therefore,

the governmenthad “exceededits authorityto detain [Hassoun].” Id.at *8. The court

orderedhis release. Id.

On August 9, 2019, the Secretary invokedthe two authoritiesat issue here to

detain Hassoun. Relyingin parton recommendationsfrom the FBIDirectorandICE

Director,the SecretarycertifiedHassounfor continued immigrationdetention under

the authorityof both 8 C.F.R.§ 241.14(d)and 8 U.S.C.§ 1226a. See Dkts.26-1, 26-2

(certificationorders). Hassounchallengedhis detentioninthis habeaspetition.

In December 2019, the district court issued an order concluding that

(1)Hassoun’scontinued detention is not lawfully authorizedby 8 C.F.R. § 241.14(d)

and (2) an evidentiary hearing would be necessary regarding whether his continued

detentionis lawfullyauthorizedby 8 U.S.C.§ 1226a(a)(6). Dec.13,2019Orderat 1-2

(Dkt.55). The districtcourt rejectedthe government’sargumentthat the administrative

record,undera “properlydeferentialstandardof review,”demonstratedthe lawfulness

of Hassoun’sdetention. Id. at 32. The court ruled that “the current record”—which

7


included the Acting Secretary’s certification that Hassoun must be detained—is

“insufficient”andorderedan evidentiaryhearingon the statute. Id. at 27.

InJanuary 2020, the district court issued an order addressingthe parametersof

the evidentiaryhearing. Jan.24,2020Order. The courtclarifiedthat the hearingwould

be limitedto whether the factual basis for continueddetention under § 1226a(a)(6)is

satisfiedthat is, “whetherHassoun’sreleasewouldthreaten the nationalsecurityof the

UnitedStates or the safetyof the communityor any person.” Id.at 5. On that issue,

the court rejectedthe government’sargumentthat Hassounshould bear the burdenof

provingby a preponderanceof the evidencethat his releasewouldnot threatennational

security or safety. Rather, the court held that the government bears the burden of

provingby clear andconvincingevidencethat the factualbasis for continueddetention

under § 1226a is satisfied. Id. at 5-12. The court also rejected the government’s

argument that, “[r]egardlessof the burdenand the standardof proof,the district court

shouldgrant broaddeferenceto the factualconclusionsdrawnbythe ActingSecretary.”

Id. at 12 (citationomitted). The court thought such deference inappropriatebecause

the administrativerecordinHassoun’scasehadnotbeendevelopedafter an adversarial

proceeding. Id. at 13. The court also concluded that such deference is inconsistent

with § 1226a(b)(1)’sauthorizationof judicial review of the “merits.” Id.

InFebruary2020, six months after the Acting Secretary’sinitialcertificationof

Hassoun’sdetention,the Acting Secretary re-certifiedHassoun’scontinued detention

under8 U.S.C.§ 1226a(a)(6). Dkt.226-1.

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USCA Case #20-5191 Document #1849825 Filed: 07/01/2020 Page 10 of 27

On June 18,2020, the district court issued an order denying the government’s

request to rely on out-of-court hearsay statements from three witnesses—Ahmed

Abdelraouf,Hector Rivas Merino,and Abbas Raza. June 18,2020 Orderat 41(Dkt.

225). Abdelraouf’sstatements were within an FBIinterview report whereinhe stated

Hassounaffirmedit was good to kill women and childrenfor religion. See Abdelraouf

FD-302 (Dkt. 169-3). Rivas Merino’s statements were also within an FBI interview

report whereinhe stated “Hassountalked about how to make explosivesand to plan

attacks.” See Rivas MerinoFD-302(Dkt.169-8). Raza’s statementswere reportedin

emails from an ICE officer where Raza indicatedHassounhad “pledgedsupport for

ISIS.” June 18,2020Orderat 31. The court concludedthat it would not “be unduly

burdensometo present Abdelraouf’s testimony by nonhearsaymeans,” id. at 28, and

that Rivas Merino’s and Raza’s statements were “insufficientlyreliable to be given

probativeweight,” id.at 29; see id.at 31.

On June 18, the governmentmoved the district court to cancel the evidentiary

hearing. Dkt.226. The governmentmaintainedthat “underthe law, [thegovernment]

has met [its]burdenof justifying [Hassoun’s]continueddetention,”but explainedthat,

in light of “th[e]Court’sprior rulings” on legal and evidentiarymatters to which the

governmentmaintainedits objections,thegovernmentcouldnot “meet the burdenand

standardof proofthat th[e]Courthas held to apply in this case.” Id.at 1,3. The court

canceled the evidentiaryhearing. Dkt.238.

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On June 29, 2020, the district court granted the habeas petition and ordered

Hassoun’srelease. Dkt.256. The court imposedseveral conditionson that release,id.,

whichare in additionto thoseconditionsof supervisionorderedinHassoun’scriminal

case. See Judgment, Hassoun,No. 04-cr-60001(S.D. Fla. Jan. 22, 2008). The court

denied the government’smotionfor a stay pendingappeal. Dkt.256.

JURISDICTION1

This habeas case arises from the Western District of New York, but a special

appellatevenue provisionapplies to certain issues in this case: “Notwithstandingany

other provisionof law, includingsection 2253of title 28, in habeas corpusproceedings

describedin [8 U.S.C.§ 1226a(b)(1)]before a circuit or district judge, the final order

shall be subject to review, on appeal, by the UnitedStates Court of Appeals for the

Districtof ColumbiaCircuit. There shall be norightof appeal in such proceedingsto

any other circuit court of appeals.” 8 U.S.C.§ 1226a(b)(3).

ARGUMENT

This Court should stay the district court’s final judgment ordering Hassoun’s

release. The governmentis likely to prevailon appeal and considerationsof harmand

the equities favor a stay. See Hiltonv. Braunskill,481U.S.770,776 (1987). This appeal

also warrants expedited consideration,includingexpedited considerationof this stay

1 Appeals from rulings under 8 U.S.C. § 1226a must be taken to this Court. 8

U.S.C. § 1226a(b)(3). The government is pursuing an appeal from the district court’s

regulatory ruling to the Second Circuit, as well as an emergency stay pending appeal.See Hassoun v. Searls, No. 20-2056 (2d Cir. filed June 30, 2020).

10


request,and this Court should grant an administrativestay while it considers this stay

request.

LA. T HEU NITEDS TATES I S IKELY TO M ERITS

The district court should not have ordered Hassoun’s release. The court’s

judgment rests on serious errors of the law, and the governmentis likely to prevailon

appeal. A stay is particularly warranted here because the appeal will raise novel and

“difficultlegal question[s].” Wash. Metro.Area Transit Comm’n v. HolidayTours, Inc.,559

F.2d841,844 (D.C.Cir. 1977). Accordingly,here, the governmentneed show only “a

substantial case on the merits [because]a serious legal question is involvedand show

that the balanceof the equities weighs heavily in favor of granting the stay,” LaRouche

v. Kezer,20 F.3d68, 72-73(2dCir.1994)(internalquotationmarks omitted).

First, the district court erred in ordering an evidentiary hearing, because the

administrativerecordconclusivelyjustifiesHassoun’sdetentionunder the statute. Dec.

13,2019Orderat 27. The court shouldhaveruledbasedon the record. Judicialreview

of an executiveimmigrationdecisionina habeascase—ashere—islimited. SeeHeikkila

v. Barber,345 U.S.229,235-36(1953) (discussingthe heavydeferenceto administrative

factfinding in immigrationhabeas cases). The SupremeCourt has been “clear on the

power of Congress to entrust the final determinationof the facts in such cases to

executive officers.” Id. at 233-34. A habeas court reviewing an administrative

immigrationdecisionmust accept the agency’s factual findings unless,at most, “some

essential findingof fact is unsupportedby the evidence.” UnitedStates ex rel.Bilokumsky

11

S UCCEEDONTHE


v. Tod, 263 U.S.149,153-54(1923). Further,Hassoun,not the government,bears the

burden of showing that it is more likely than not that the government’s factual

determinationsfail to meet that deferentialstandard. See Millerv. Cameron,335 F.2d986,

987 (D.C.Cir. 1964).

The national-securityimplicationsof this case support the conclusionthat this

case should have been decidedon the administrativerecord. Where national-security,

foreign-relations,and immigrationmattersconverge—asthey do here—acourt owes

deferenceto the fact-findinganddecision-makingof the ExecutiveBranch. See INSv.

Aguirre-Aguirre,526 U.S.415,425 (1999)(“[J]udicialdeferenceto the ExecutiveBranch

is especially appropriatein the immigrationcontext where officials ‘exerciseespecially

sensitivepoliticalfunctions that implicatequestionsof foreign relations.”). Deference

should extend to § 1226adeterminationsbecause the statute’s authorizationof judicial

review does not displacethe principlesof deferenceto agencies“inmattersthat invoke

their expertise.” Zadvydas,533 U.S.at 700.

And nothing in 8 U.S.C. § 1226a suggests that an evidentiary hearing is

appropriate. InZadvydas, the SupremeCourt recognized“specialcircumstanceswhere

special argumentsmight be made ... for heighteneddeferenceto the judgmentsof the

political branches with respect to matters of nationalsecurity.” 533 U.S.at 696. In

those situations,“[o]rdinaryprinciplesof judicial review in this area recognizeprimary

ExecutiveBranchresponsibility”and “counsel judges to give expert agenciesdecision-

makingleewayin mattersthat invoketheir expertise.” Id.at 700. Section1226a(b)(1)’s

12


authorizationof judicial review does not displace those ordinaryprinciples. Congress

enacted § 1226a, just four months after Zadvydas, against the backdrop of those

principles. See Clark v. Martinez, 543 U.S. 371, 386 n.8 (2005) (citing § 1226a as

Congress’ responseto Zadvydas).

Under these principles,the administrativerecord justified Hassoun’scontinued

detention under § 1226a(a)(6). That statute providesfor continueddetention“only if

the release of the alien will threaten the national security of the United States or the

safety of thecommunityor any person.” 8 U.S.C.§ 1226a(a)(6).That statuteis satisfied

here:the FBIhas concludedthat “thereleaseof [Hassoun]posesa significantthreat to

nationalsecurityand significant risk of terrorism”and that “his releasewould threaten

the nationalsecurity of the United States and the safety of the community.” June 5,

2020FBIMemo.4; accord Feb.7, 2020ContinuedDetentionCertificationOrder (Dkt.

226-1). The FBI’s assessment is supportedby detailed factual summariesprovidedin

the memorandum,which show Hassoun remains a significant threat to national

security. Id. at 2-3. The districtcourt erred in orderingan evidentiaryhearing,having

concluded it “imperative to have a full and complete record before reaching any

conclusions regarding the constitutionality of § 1226a” and finding the FBI

memoranduminsufficient. See Dec.13,2019Orderat 26-27. That rulingfailed to grant

deference to the Executive in an area of its expertise: determinationof threats to

nationalsecurity. See supra. A stay is warrantedon this groundalone.

13


Second, independentlyof whether the district court agrees on the first statutory

argumentabove, the district court erred in its rulingson the placementof the burden

of proofand the standardof proof.

To start,Hassoun—notthe government—shouldbearthe burdenof provingby

a preponderanceof the evidencethat his detentionis unlawful. “[T]he traditionalrule

in habeas corpus proceedings is that the [habeas petitioner] must prove, by the

preponderanceof the evidence,that his detentionis illegal.” Bolton v. Harris,395 F.2d

642, 653 (D.C.Cir. 1968);see, e.g., Al-Bihani,590 F.3d at 878 (holding“constitutionally

adequate,” in the Guantanamo context, a “‘burden-shiftingscheme’ in which the

governmentneed only present ‘credibleevidence that the habeas Appellee meets the

enemy-combatantcriteria’ before ‘the onus could shift to the Appellee to rebut that

evidence’”). Section1226a should operate no differently than the standardin habeas

proceedings. Nothing in § 1226a(a)(6)shows an intent to depart from the traditional

rule. Employingthis standardprovidesa robust procedureprotection:judicial review

by a federal judge. See 8 U.S.C.§ 1226a(b)(1).

Even if the burden did lie with the government, the Hamdi burden-shifting

frameworkwouldapply. Hamdi,542 U.S. 507. Hamdidoes involvea different context:

detentionof U.S.citizens, not removableterrorist alienssuch as Hassoun. ButHamdi is

instructiveinestablishingan evidentiaryprocessthat balancesthe “riskof an erroneous

deprivation” of a detainee’s liberty interest with undue procedural burdens on the

government. Hamdi, 542 U.S. at 534 (citing Mathews v. Eldridge, 424 U.S. 319, 335

14


(1976)). Under that scheme,“oncethe Governmentputs forth credible evidence that

the habeaspetitionermeets”the relevantcriteria, “theonus couldshift to the petitioner

to rebut that evidencewith more persuasiveevidencethat he falls outsidethe criteria.”

Id. The government’s administrativerecord supporting § 1226a detention makes a

prima facie Hamdi case, and the burden should then shift to Hassoun“to rebut that

evidencewith more persuasiveevidence that he falls outsidethe criteria.” Hamdi,542

U.S.at 534.

The court concluded that the government bears a “clear and convincing

evidence” burden, becauseHamdiwas only “settinga floor for the process.” Jan. 24,

2020 Order at 8-9. Analogizing to civil commitment cases using the clear and

convincingstandard,the court held that standardwas appropriatehere. Id. (relyingon

Addingtonv. Texas,441U.S.418 (1979)). But inJones v. UnitedStates,463U.S.354 (1983),

the SupremeCourt cautionedagainst equating all civil commitmentcandidateswhere

the risk was not equally borne by all members of society. The Court adopted a

preponderance-of-the-evidencestandard where an individual’scivil commitment was

supportedby proofthat the petitionerhas committeda criminal act as a result of his

mental illness. Id. at 367. Becausea criminalact was “not within a range of conduct

that is generally acceptable,” the Court concluded that the risk of commitment for

“mere idiosyncratic behavior”—the reason Addington adopted the heightened

standard—was eliminated. Id. (quotations omitted). Using a clear-and-convincing

15


standardfails to recognizethe crucial distinctionapplicableherethat was articulatedin

Jones.

Third, after ruling that the government could not rest on the administrative

recordand after imposinga heightenedburden on the government at the evidentiary

hearing,the district court madethe furthercriticalerrorof excludingevidencethat the

governmentneededat the hearing. Tr.of June 12,2020Hr’gat 38:12-18,39:9-13(Dkt.

218) (excluding, as inadmissible hearsay, witness statements); June 18, 2020 Order

(denyinggovernment’smotionto amendwitnessand exhibit lists).

The district court’s evidentiaryrulings defy the rulethat, in a habeas proceeding,

hearsay “is always admissible.” Al-Bihani, 590 F.3d at 879. The question the district

court should have asked is “what probative weight to ascribe to whatever indiciaof

reliability it exhibits.” Id. The district court’s exclusion of this evidence severely

hamperedthe ability of the evidentiaryhearingto answer the one questionbefore the

court ina habeascase: is detentionlawful? See id.at 880. The excludedevidencedirectly

answered the pertinent question by supporting the government’sdeterminationthat

Hassoun’s release would threaten national security. These statements, including that

“Hassountalkedabouthowto makeexplosivesand to planattacks,”RivasMerinoFD-

302,and that Hassoun“pledgedsupportfor ISIS,”June 18, 2020Orderat 31, support

the government’sassessment. Indeed,these statementsare all referredto in the recent

FBImemorandumassessingHassoun’sthreat. Compare June 5, 2020 FBIMemo. 2-3,

with RivasMerinoFD-302,AbdelraoufFD-302.

16


CB. A LL R EMAINING ONSIDERATIONS S TAY

Considerations of irreparable harm and the equities also strongly favor a stay of

Hassoun’sreleasependingappeal.

IrreparableHarm. The denial of a stay threatens significant and irreparable

harm to the United States. Hassoun has already been indicted, prosecuted, and

convictedin federal district court of conspiracyto murder,kidnap,andmaimpersons

in a foreigncountry,conspiracyto providematerialsupport to terrorists,and providing

materialsupport to terrorists. UnitedStates v. Hassoun,476 F.3d 1181,1183 (11thCir.

2007). The Acting Secretaryof DHS,the Directorof FBI,and the Acting Directorof

ICEconcludedthat Hassounposes a threat to the nation. See, e.g., Feb 21, 2019 FBI

Memo.(Dkt. 147, Ex. B) (“As the FBI Director, I ... assess that release of Hassoun

posesa significantthreat tonationalsecurityandsignificantriskof terrorismthat cannot

be mitigatedor avoidedby conditionsof release.”);Feb.7, 2020ContinuedDetention

Certification Order (Acting Secretary determining that Hassoun “has engaged in

terrorist activity or will likely engage in any other activity that endangersthe national

security,”“his releasepresentsa significantthreat to the nationalsecurityor a significant

risk of terrorism,”and “no conditionsof release can reasonablybe expectedto avoid

those threats”). The FBIrecently reiteratedthis conclusion. June 5, 2020FBIMemo.

1 (“releasewould threaten the national security of the UnitedStates and the safetyof

the community.”).

17

D ECISIVELYS UPPORTA


GivenHassoun’spast conduct,Hassoun’slikelihoodof reoffendingis high. See

UnitedStates v. Meskini,319 F.3d88, 92 (2d Cir. 2003) (“[E]venterrorists with no prior

criminal behavior are unique among criminals in the likelihood of recidivism, the

difficultyof rehabilitation,and the need for incapacitation.”);see also Jayyousi, 657 F.3d

at 1117(Hassoun’sdirect appeal; quotingMeskini). Releasewouldallow the irreparable

harms that the ExecutiveBranch has sought to prevent. Hassoun’s recent conduct

supportsthe view that he continuesto refuseto conformhis conductto the law. While

detained and during this litigation, he violated the protectiveorder by intentionally

revealingthe identityof a confidentialinformantagainsthim. See June 18,2020Order

at 18. The districtcourt “d[id]not findplausible”Hassoun’sexplanationthat he lacked

knowledgeof his conduct. Id. at 19-20.

Moreover,Hassoun is a convicted alien terrorist who has a final order of

removal. See Bernacke Decl. ¶ 5. He does not have a right to remain in the United

States,see Jennings, 138S. Ct. at 837 (“Evenonce insidethe UnitedStates,aliensdo not

have an absolute right to remain here.”), much less be released from government

custodyto residein the UnitedStates,see Zadvydas,533 U.S.at 702 (Scalia,J.) (dissenting

and noting that in Shaughnessy v. United States ex rel. Mezei, 130 U.S. 206 (1953), the

Supreme Court upheld continued detention of an inadmissible alien unable to be

removedas he did not havea constitutionalright to releaseinthe UnitedStates).

Considerations of harm strongly favor a stay of Hassoun’s release pending

appeal.Courts regularly recognize that national security concernsare so weighty that

18


they commonlywarrant grantinga stay pendingappeal. See, e.g., Klaymanv. Obama,957

F. Supp. 2d 1, 10 (D.D.C. 2013) (granting stay in light of “the significant national

security interestsat stake in this case and the noveltyof the constitutionalissues”),rev’d

in government’sfavor, 800 F.3d 559 (D.C.Cir. 2015). That approachis warrantedhere.

Balanceof Equities. “Once [thestay] applicantsatisfies the first two factors,

the ... inquirycalls for assessingtheharmto the opposingpartyandweighing the public

interest.” Nkenv. Holder,556 U.S.418, 435 (2009). That balancefavors a stay.

First, releasingHassounduring appeal would placea significantburdenon ICE,

the FBI,and others inthe federalgovernment. See GlasheenDecl.;MeadeDecl.(Dkt.

242-3). Ifreleased,the governmentwill not be able to assureHassoun’sreportingand

compliancewith any terms of release orderedand thereforeprevent the threat that he

poses. Aliens released from ICE custody can relocatewithout properlynotifyingthe

government,and significantgovernmentresourcesmust then be expendedin order to

locateand apprehendan individual,especially a dangerousindividual,for removal. As

the FBI Deputy Director explained, if Hassoun is released from detention pending

removal,he presents a significant risk of terrorismwhich cannot be mitigatedby any

conditionsof release. June 5, 2020FBIMemo.4 (describingthe FBI’s riskassessment,

whichthe court permittedto be sealed).

Evenwith reportingconditionsthat would promotebasic compliancewith his

physicalreportingrequirements,thesewouldnot mitigatetheparticularthreat posedby

19

USCA Case #20-5191 Document #1849825 Filed: 07/01/2020 Page21of 27

Hassoun as someone known to recruit others to engage in terrorist activity and to

providematerial support for the commissionof terrorist activity. As detailed in the

underlyingcriminal recordand the June 5, 2020FBImemorandum,which documents

Hassoun’scontinuingeffort to recruitor encourageothersto engageinterroristactivity,

Hassoun’s release poses a unique threat to national security because of his ability to

providelogisticalguidance,financialsupport,and ideologicalmotivationto individuals

who plan to commit violent terrorist activities. The threat posed by this behavior

cannot be wholly mitigatedby any conditions.

Second, the Executivehas articulated Hassoun’sdetention to be in the public

interest. The Acting Secretary,in consultationwith the Acting ICEDirectorand the

FBIDirectorand Deputy Director,has determinedHassoun is a significant national

securitythreat. Theseadministrativedirectivesmeritdeferenceon the “publicinterest”

prong. For the Judiciary, too, a stay serves the public interest by promotingsound

judicial administrationand decision-making. The authorities and issues presented in

this case are novel and important. They warrant considereddeliberation from the

Court, rather than rushedconsiderationin an emergency-stayposture. By enteringa

stay, this Court can aid the sound resolutionof important legal questionsbearing on

nationalsecurity.

Hassoun’sliberty interestsdo not overcomethe publicinterestsset forth above.

See Hilton,481U.S.at 778-79(due process does not prohibit “stayingthe releaseof a

successful habeas petitioner pending appeal because of dangerousness”). As the

20


SupremeCourtarticulated,the “Government’sregulatoryinterestin communitysafety

can, in appropriatecircumstances,outweigh an individual’s liberty interest.” United

States v. Salerno,481U.S.739, 748 (1987). As set forth thoroughlyabove, that balance

stronglyfavorsstaying Hassoun’sreleasependingappeal.

CONCLUSION

This Court should stay the district court’s final judgment pendingresolutionof

this appeal,expeditedthis appeal,and issuean administrativestay of the final judgment

while it considers this stay request.

21


Dated:July 1,2020 Respectfullysubmitted,

JAMES P.KENNEDY, JR.

United States Attorney

22

JOSEPH H. HUNT

Assistant Attorney General

WILLIAMC. PEACHEY

Director

KATHLEEN A. CONNOLLY

Deputy Chief, National Security &

Affirmative Litigation Unit

s/ Anthony D.Bianco

ANTHONY D. BIANCO

Senior Counsel for National Security

Office of Immigration LitigationCivil Division

U.S. Department of Justice

P.O. Box 868, Ben Franklin Station

Washington, DC 20044(202) 305-8014

STEVENA. PLATT

JOHNJ.W.INKELES

Counsel for NationalSecurity


Federal Rule of AppellateProcedure27(d) because it has been prepared in 14-point

Garamond,a proportionallyspaced font. I further certify that this motion complies

with the type-volume limitationof Federal Rule of Appellate Procedure27(d)(2)(A)

because it contains 5,200words accordingto the count of MicrosoftWord,excluding

the materialspermittedto be excludedby Rule32(f).

I hereby certify that the foregoing motion complies with the requirements of

CERTIFICATEOFCOMPLIANCE

s/ Anthony D. Bianco

ANTHONY D. BIANCO



Clerk of the circuit court by using the appellate CM/ECF system. Service will be

accomplishedby the appellateCM/ECFsystem.

I herebycertify that on June 30, 2020,I electronicallyfiled the foregoingwith the

CERTIFICATEOFSERVICE

s/ Anthony D. Bianco

ANTHONY D. BIANCO



[NOTYET SCHEDULEDFORORALARGUMENT]

INTHE UNITEDSTATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

ADHAMAMINHASSOUN,

Appellee-Appellee,

No.v. 20-5191

JEFFREY SEARLS, in his official capacity as

Acting Assistant Field Office Director and

Administrator, Buffalo Federal Detention Center,

Appellant-Respondent.

CERTIFICATEOFPARTIES

Appellee/ Petitioner & Counsel

Hafetz,Jonathan:Counselfor Appellee-Petitioner

Hallett,A.Nicole:Counsel for Appellee-Petitioner

Hassoun,AdhamAmin:Appellee-Petitioner

Hogle,Charles:Counsel for Appellee-Petitioner

Kaufman,BrettMax:Counselfor Appellee-Petitioner

Manes,Jonathan:Counselfor Appellee-Petitioner

Perez,Celso Javier: Counselfor Appellee-Petitioner

Rabinovitz,Judy:Counselfor Appellee-Petitioner


Appellant/Respondent & Counsel

Belsan,Timothy M.: Counsel for Appellant-Respondent

Bianco,Anthony D.:Counsel for Appellant-Respondent

Carilli,JosephF., Jr.: Counselfor Appellant-Respondent

Connolly,KathleenA.: Counselfor Appellant-Respondent

Hunt,Joseph H.:Counselfor Appellant-Respondent(AssistantU.S.Attorney

General)

Inkles,John J.W.: Counsel for Appellant-Respondent

Kennedy,James P., Jr.: Counsel for Appellant-Respondent(U.S.Attorney,Western

Districtof New York)

Peachey,WilliamC.: Counselfor Appellant-Respondent

Platt,StevenA.: Counselfor Appellant-Respondent

Searls, Jeffrey:Appellant-Respondent

Documents

ADHAMAMINHASSOUN, Appellee-Petitioner, v. No.20-5191 … · 1 day ago · noononJuly 2,2020,petitionerAdhamAminHassoun,a three-timeconvictedterrorist ... USCACase#20-5191 Document#1849825