D.C. Circuit concludes Foreign Affairs Reform and
Restructuring Act as amended by REAL ID Act confers on detainee no habeas or
due process right to judicial review of conditions in Iraq before being
transferred into its custody
Since 2004 the U.S. military had detained Shawqi Omar, a
dual citizen of Jordan and the U.S., in Iraq on the basis of evidence he had
participated in al Qaeda’s terrorist activities there. The U.S. government
apparently intended to transfer him to the custody of Iraq. In 2005 Omar filed
a habeas petition claiming the right to judicial review of conditions in Iraq
before being transferred there, and that he had a habeas and due process right
not be transferred if (as he alleged) he was likely to be tortured while in
Iraqi custody. In 2008 the U.S. Supreme Court in Munaf v. Geren, 553 U.S. 674
(2008), concluded that Omar had neither a habeas corpus nor a due process right
to “judicial second‑guessing of the Executive’s determination that he was not
likely to be tortured in Iraqi custody.” [Slip op. 2]
In his amended habeas petition to the district court, Omar
posed both a novel statutory argument—that the Foreign Affairs Reform and
Restructuring Act of 1998 (FARR), as supplemented by the REAL ID Act of 2005,
gave him the right to the judicial review he sought—and a refashioned
constitutional argument—that the habeas corpus guarantee, either by itself or
in conjunction with the Due Process clause or FARR, entitled him to the review.
The district court rejected both arguments, granting the Government’s motion to
dismiss.
In affirming the district court’s decision, the U.S. Court
of Appeals for the D.C. Circuit concludes that Omar’s constitutional argument
already had been authoritatively addressed and rejected in Munaf, stating: “The
Supreme Court has established that there is no freestanding constitutional
right for extradition or military transferees to obtain judicial review of
conditions in the receiving country before being transferred.” [Slip op. 15]
The Appeals Court likens Omar’s status to that of an extradition or military
transferee: “Omar is a military detainee captured during war and now facing
transfer to the custody of another nation. In addition, because Omar is facing
transfer to the custody of another sovereign that has convicted him of a crime,
his situation is analogous to that of an extradition transferee—a point Omar
himself acknowledges.” [Slip op. 12]
To Omar’s argument that the REAL ID Act, to the extent it
amended FARR, violated the Constitution’s guarantee of habeas corpus, the
Appeals Court states while FARR does allow aliens in removal proceedings to
obtain the type of judicial review Omar seeks, in FARR on its own and,
certainly, as supplemented by the REAL ID Act, “Congress has not created such a
right for extradition or military transferees such as Omar.” [Slip op. 21] In
support, the Court states, “Omar is not subject to a removal order and has not
filed—and, as a military transferee, is not eligible to file—a petition for
review under § 242 of the Immigration and Nationality Act. The REAL ID Act thus
confirms that Omar possesses no statutory right to judicial review of
conditions in the receiving country.” [Slip op. 9‑10] And, despite Omar’s
argument to the contrary, the Court concludes, “the fact that Congress, in the
FARR Act, created such a right for immigration transferees does not raise a
constitutional problem simply because Congress did not also extend the right to
extradition and military transferees.” [Slip op. 20]
In his Concurrence, Judge Griffith provides a spirited
rebuke of the majority’s jurisdictional stance:
“Our quarrel over jurisdiction stems from my belief that the
FARR Act ‘trigger[s] constitutional habeas’ by giving Omar a colorable claim
that his transfer to Iraqi authorities would be unlawful¼.When an American citizen is in
U.S. custody, the Constitution’s guarantee of habeas corpus entitles him to
assert any claim that his detention or transfer is unlawful. Because Congress
may not deprive Omar of access to the courts without suspending the writ or
repealing the statutory basis for his claim, neither of which it has done here,
we must consider his argument on the merits.” [22] Judge Griffith adds, “[T]he Supreme Court has repeatedly held that only the
clearest of statements from Congress should be read as repealing our habeas
jurisdiction, see Demore v. Kim, 538 U.S. 510, 517 (2003)¼.Section 2242(d) of the
FARR Act, which the majority suggests strips the federal courts of jurisdiction
to hear Omar’s claim, does not speak with the required clarity. Although it
leaves no doubt that the FARR Act does not itself ‘provid[e] any court
jurisdiction’ to hear claims outside the immigration context, it just as
plainly leaves undisturbed our jurisdiction to hear FARR Act claims under 28
U.S.C. § 2241 [federal habeas statute]. A plurality of the circuits have
reached the same conclusion.” [Slip op. 23]
Citation: Omar v. McHugh, 646 F.3d 13 (D.C. Cir.
2011).
***
Magdalena Cuprys is the principal of Serving Immigrants, a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. Swift resolution of immigration-related issues is integral to a client’s ability to conduct business or reach their personal goals in the United States. Located in Miami and Clewiston, the firm’s offices provide corporate and individual clients of foreign nationality with temporary work permits for the U.S., green card petitions, criminal waivers and representation in removal proceedings cases. With over a decade of experience, the law firm provides clients with the confidence that their cases will be handled by an expert who understands their needs and how to obtain their goals. Although the majority of the law firm’s clients live in Florida, it represents people from all over the United States and several foreign countries.
