Can the Executive branch trump a federal court’s decision to defer an immigrant’s removal by relying on a secret "diplomatic assurance" that the immigrant will not be tortured on his return from a country that is notorious for its use of torture and has violated such assurances in the past? The Court of Appeals for the Third Circuit will have the opportunity to answer this question in the case Khouzam v. Mukasey.
An immigration judge originally halted Mr. Khouzam’s deportation to Egypt after determining that it was more likely than not that he would be tortured if he were to be returned given his previous torture at the hands of Egyptian officials and his religious beliefs. The Department of Homeland Security (DHS) terminated Mr. Khouzam’s deferral and attempted to send him back to Egypt after the State Department obtained a diplomatic assurance from Egypt stating that he would not be tortured. Human Rights USA filed a habeas petition on Mr. Khouzam’s behalf with the United States District Court for the Middle District of Pennsylvania in order to protect Mr. Khouzam’s fundamental right to not be tortured and bring transparency to the diplomatic assurance process.
One might ask why DHS would rely on such an assurance from Egypt, especially since Egypt routinely violates its diplomatic assurances to not torture. But the more important question is, why won’t DHS show the court the diplomatic assurance and discuss how it was obtained. Why do the current regulations allow DHS and State Department officials to ignore an immigration judge’s decision to defer removal?
At the core of the Attorney General’s argument is the belief that immigration judges are not well suited to review diplomatic assurances. It appears that the government has forgotten that immigration judges already review country conditions and expert testimony to decide if it's likely the returned individual will be tortured. It's not a stretch to imagine that a judge would be able to review the process by which the diplomatic assurance was obtained, the monitoring process in the foreign country, and that country's history of respecting diplomatic assurances.
Mr. Khouzam’s attorneys, Lee Gelernt and Amrit Singh, deftly argued that a court should be given a chance to review the diplomatic assurance used to terminate their client’s deferral of removal, and anything less violated his right to due process as well as America’s Convention Against Torture (CAT) obligations. Mr. Gelernt and Ms. Singh offered the Court the narrow position that this particular secret diplomatic assurance was not sufficient to satisfy the government's CAT obligations because of Egypt's history of torturing Mr. Khouzam and violating diplomatic assurances, but noted that the Court could just as easily find diplomatic assurances unacceptable because they were only needed from countries with less-than-spectacular human rights records.
Mr. Khouzam's question before the Court, simply put, is whether the Court should allow the Department of Homeland Security to deport him based on a secret diplomatic assurance from a country that has already tortured Mr. Khouzam and has violated diplomatic assurances in the past. It is undoubtedly an important question that should be answered in the negative. But America's question before the Court is even more critical. Can the Executive get away with promulgating regulations that contradict the intent behind their implementing legislation and fly in the face of judicial decisions protecting fundamental rights? The Court of Appeals for the 3rd Circuit should take this opportunity to answer with a resounding "no".
By Ben Berlin, Human Rights USA Legal Intern