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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