Chicago Legal Aid Group Tries to Halt Deportation of Pakistani Militant

In March 2008, the Legal Assistance Foundation of Metropolitan Chicago (LAFC), which is funded by the Legal Services Corporation (LSC), tried to stop U.S. immigration authorities from deporting a Pakistani man for covering up his involvement with a dangerous terrorist organization.

The case began in August 1994 when Mohammad Azam Hussain, then 26, entered the U.S. from his native Pakistan and five years later became a lawful permanent resident. In 2003, he applied to become a naturalized U.S. citizen. During his years of residence in the Chicago area, Hussain worked in a variety of jobs such as cab driver and restaurant worker.

On September 30, 2004, Hussain was arrested for failing to disclose on his application for U.S. citizenship his membership in a Pakistani terrorist organization and lying to U.S. government officials regarding such membership. On October 7, U.S. District Court Judge Samuel Der-Yeghiayan denied Hussain’s request to be released on bond, agreeing with the government’s argument that Hussain was a flight risk. (Throughout these and the following criminal proceedings, Hussain was represented by private lawyers.)

Der-Yeghiayan cited the fact that Hussain admitted to an FBI agent that he was an active and founding member of an organization called Mohajir Quami Movement-Haqiqi (MQM-H), a group that the U.S. State Department has officially cited as a terrorist group. Based in Karachi, MQM-H, whose ostensible mission is to defend the interests of Indian Muslim refugees and their descendents, is a group notorious for its brutality. Its members have been involved in murders, kidnappings, extortion and other criminal acts. Hussain was a high-ranking member of the group between 1991 and 1994. He admits that after coming to the U.S., he maintained contact with Afaq Ahmad, the group’s leader who is currently on trial in Pakistan for murder and other crimes.

Der-Yeghiayan ruled that since Hussain is a founding member of MQM-H and maintains close ties with its members, he should not be released on bond because he could flee to Pakistan where MQM-H would provide him shelter and avoid prosecution in the U.S.

In addition, Der-Yeghiayan cited the suspicious nature of Hussain’s finances and immigration papers as further evidence to deny bond. In the eight months preceding his arrest, Hussain made two trips to Pakistan even though his officially-declared financial resources indicated he lacked the funds to make such trips. Furthermore, when he was arrested, he did not have a foreign passport which he claimed he gave to a friend. However, no such friend existed. When Hussian returned to the U.S. from Pakistan in July 2004, he was in possession of another person’s credit card and customs declarations that belonged to other people.

In conclusion, Der-Yeghiayan held that Hussain’s past conduct indicates “a disregard for the law, evasiveness, and the ability to travel under an alias.” When Hussain argued he was just an honest immigrant who wanted to make a life in the U.S., Der-Yeghiayan dismissed him as “an insult to the law abiding immigrant community.” Given his “membership in an organization that engages in criminal and violent activities,” Der-Yeghiayan said “Hussain would not hesitate for one moment to skip town.”

In June 2005, Hussain was convicted of numerous counts of immigration fraud which including unlawfully attempting to procure citizenship and making a false claim to United States citizenship. He was sentenced to nine months in prison, time served. The next month, Hussain was transferred to detention in an immigration facility and deportation proceedings were initiated.

In October 2006, Hussain’s criminal conviction was vacated after the government revealed it failed to disclose classified information to the defense team prior to his trial. The nature of the classified information did not affect the substance of the original guilty verdict. The motion for dismissal of the conviction states that “although the classified information does not bear on the guilt or innocence of [Hussain] as to the charges…the failure to disclose the classified information provides, in the context of this case, a ground for a new trial.” Immigration and Customs Enforcement (ICE) chose not to retry Hussain but rather continue the deportation proceedings. The priority was to simply kick Hussain out of the country.

After the dismissal of the criminal charges, Hussain filed a request for release on bond pending a final decision in the deportation process. A complex interagency dispute ensued. The Department of Homeland Security (DHS), which oversees ICE, argued before an Immigration Judge that Hussain should not be released on bond because he was a member of a terrorist organization and continued detention was mandatory. In February 2007, the Immigration Judge ruled against DHS, ordering Hussain released on a $40,000 cash bond. DHS immediately appealed the Immigration Judge’s ruling to the Board of Immigration Appeals (BIA) and stay of the order to release Hussain on bond pending the decision of BIA. Authorities considered Hussain a serious flight risk and did not want him released under any circumstances.

It was at this juncture in March 2007 that the Legal Assistance Foundation of Metropolitan Chicago (LAFC) intervened in the case and filed a habeas corpus petition to immediately release Hussain.

LAFC is a legal aid group that receives millions in taxpayer dollars from the federally-financed Legal Services Corporation (LSC) to assist the poor in their civil legal needs. LAFC and LSC constantly demand more taxpayer dollars claiming they lack the resources to meet the legitimate needs of the poor in cases such as landlord disputes and domestic violence. Yet, LAFC had the resources to take up the cause of an alien who was a member of a brutal terrorist organization in Pakistan and had entered the U.S. illegally. LAFC’s litigation on behalf of Hussain was politically charged in that it dealt with sensitive issues of national security, the detention of terrorism suspects, and the right of the judiciary to involve itself in the broader issue of the government’s war against international terrorism. While not a violation of congressional restrictions, this is precisely the kind of politically-motivated litigation that represents a gross misuse of taxpayer money.

LAFC contended that keeping Hussain in detention while awaiting a final deportation order violated his Fifth Amendment right to substantive due process. LAFC also argued that it was unconstitutional for Hussain to have been kept in detention for nearly two years.

On May 1, 2007, three days before a federal judge was to hear LAFC’s petition, the Immigration Judge issued his final decision on whether Hussain should be deported. He ruled that Hussain was indeed removable, that is eligible for deportation, because he made false statements and used fraudulent documents to enter the U.S. Specifically, the judge concluded that Hussain’s involvement with MQM-H rendered him inadmissible to the U.S. However, the Immigration Judge then issued a ruling that further complicated Hussain’s legal status. He concluded that because Hussain’s involvement with MQM-H would likely make him subject to torture if he was returned to Pakistan, his deportation must be delayed under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

The CAT is a 1984 convention, to which the U.S. is a signatory, that forbids nations to return people to their home country if there is reason to believe they will be tortured. This raised the possibility that Hussain could be freed to avoid indefinite detention.

DHS appealed that portion of the Immigration Judge’s decision finding that Hussain is entitled to have his deportation deferred under CAT. Hussain could always be deported, they argued, to another nation. Thus, he should continue to be detained while awaiting deportation to the alternative country.

On the morning of the day the court scheduled argument on LAFC’s habeas corpus petition, May 4, 2007, the BIA issued a decision overturning the Immigration Judge’s decision that Hussain should be released on bond. The BIA held that the Immigration Judge erred in concluding that Hussain had to be formally charged with being a member of a terrorist organization in order to be subject to mandatory detention. On May 14, 2007, LAFC informed the court that the Immigration Judge issued a new decision holding that Hussain was ineligible for release on bond due to the government’s original determination that he was a member of a terrorist organization.

The series of rulings by the BIA and the Immigration Judge after LAFC filed its complaint mooted a number of its arguments. However, Judge William Griesbach of the U.S. District Court for the Eastern District of Wisconsin held that LAFC’s argument that Hussain’s mandatory detention violated his right to due process was not moot. Thus, the case came down to the merits of LAFC’s claim that the government’s detention of Hussain while awaiting deportation was “based on an unconstitutional theory of mandatory detention.” The issue to be decided is if Hussain’s detention is mandated by the determination that he is a member of a terrorist organization.

The court ruled against LAFC. The court observed that both the Immigration Judge and DHS were in agreement that Hussain had engaged in terrorist activities. And DHS was correct to assert that Hussain was thereby barred from seeking asylum because of his involvement in terrorism.

Furthermore, the court held that national security considerations justify the mandatory detention of Hussain: “The rationale for detaining aliens involved in terrorist activity pending completion of removal proceedings is as strong as it is obvious. National security concerns overwhelmingly support such a policy.”

LAFC also argued that Hussain’s detention violated his due process rights because of its “extraordinary length.” When the U.S. district court heard this case in May 2007, Hussain had been in detention since July 2005. In Demore v. Kim (2003), the U.S. Supreme Court upheld the mandatory detention of aliens deportable for conviction of a crime pending completion of deportation proceedings. LAFC argued that the High Court’s decision was based on the fact that aliens deported on the grounds of a criminal conviction spent an average of 47 days in custody before the initial determination by an Immigration Judge and an average of four months more if they appealed to the BIA. Given that Hussain had been in detention for nearly two years, LAFC claimed his constitutional rights had been violated.

The court rejected this argument. Although the High Court took into account the length of deportation in Kim, it did not adopt a limit for the amount of time an alien awaiting deportation could be constitutionally detained. The continued detention of Hussain was justified because of the complications of his case. DHS was, at that time in May 2007, appealing the Immigration Judge’s ruling that Hussain, pursuant to the United Nations CAT, could not be deported to Pakistan because of the possibility of torture. The court held that DHS’s challenge is not without merit given that Hussain twice returned to Pakistan without being harmed for a month in January 2004 to visit his mother and again for nearly a month in July 2004 to sing at a friend’s wedding. The court observed that even if DHS loses its appeal, the government could still seek diplomatic assurances from Pakistan that he not be mistreated or, alternatively, seek his deportation to another nation.

The court also held that the U.S. Supreme Court has acknowledged that, where terrorism is a concern, “special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security.” (Zadvydas v. Davis, 2001).

Thus, on May 22, 2007, the U.S. District Court for the Eastern District of Wisconsin rejected LAFC’s habeas corpus petition for the release of Hussain.

In October 2007, the BIA affirmed the Immigration Judge’s order that Hussain should be deported but delayed the action until he could be removed without violating the CAT. The Immigration Judge formally entered the order on November 6.

LAFC filed a petition with the United States Court of Appeals for the Seventh Circuit to overturn to overturn that order – even though Hussain couldn’t be deported to Pakistan because he could face torture.

The Court of Appeals stayed the implementation of the final order for deportation pending its decision. It would seem that LAFC’s continued litigation on behalf of Hussain was pointless but, as the appeals court noted, it was not moot. Hussain was in a precarious legal situation. The protection against deportation provided by the CAT is fragile. The U.S. government is trying to obtain assurances from the Pakistani government that Hussain will not be tortured if he is returned. Failing that, the government would try to find another nation to accept him in which he would not be in danger of torture, such as India.

In addition, LAFC first argued that it was unconstitutional for BIA to keep Hussain in detention while it considered his case between July 2005 and the final order of deportation in November 2007. The appeals court said this amounted to a moot habeas corpus petition, noting “there is nothing we can do about the Board’s failure to have ordered Hussain released during the administrative proceeding, for that is now complete.”

The issue then was whether to review LAFC’s habeas corpus petition. The court rejected LAFC’s request but noted that the indefinite detention of aliens who are ordered deported is forbidden. Ordinarily, an alien must be deported with 90 days of the issuance of the order or, as in this case, 90 days after the court upheld the order. Under the U.S. Supreme Court’s Zadvydas decision, there is a presumption that if an alien is not removed after the beginning of the removal period he is entitled to be released within six months if “there is no significant likelihood of removal in the reasonably foreseeable future.”

The appeals court denied LAFC’s request for habeas corpus relief on December 18, 2007.

But LAFC filed another challenge with the Seventh Circuit challenging the lower court’s finding that Hussain should even be considered a terrorist and eligible for deportation. LAFC also challenged the findings that Hussain had committed immigration fraud. The court handily rejected this line of defense, citing the overwhelming facts of the case. Specifically, when Hussain first entered the U.S. he showed immigration officers two documents he bought from a Pakistani official. One purported to parole him into the U.S. The other purported to authorize him to work in the U.S. Both documents were fraudulent. Throughout his deportation proceedings, Hussain claimed his false immigration documents were innocent mistakes, which no one believed. The LAFC lawyer tried to argue that a federal agent’s “imprecise recollection of these hearsay documents is not particularly probative.” The court rejected this argument, noting that the “evidence was conflicting, and the immigration judge was entitled to credit the government’s evidence.” The court also took issue with LAFC’s strained legal reasoning: “Hussain’s lawyer appears not to understand the limitations of judicial review of administrative decisions.”

As further evidence of Hussain’s pattern of deception and lying, he falsely claimed on two loan applications that he was a U.S. citizen.

On Hussain’s involvement with terrorism, LAFC argued that he could not be deported because it was not stated in the charge that initiated his deportation. But the court rejected this claim, noting “that all the statutory bar requires is that the alien be removable on grounds of terrorism.”

LAFC then argued that the provision for deportation on grounds of terrorism is ambiguous and unless interpreted narrowly would precipitate a serious constitutional issue of fair notice. The federal statute in question defines a terrorist organization as “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in” certain designated activities including an illegal use of explosives, firearms, or other dangerous devices “with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.” Furthermore, a person who recruits or solicits funds for a terrorist organization “commits an act that the actor knows, or reasonably should know, affords material support [to a terrorist organization].

The court rejected LAFC’s argument that these are too vague. LAFC complained that these definitions “stretch” the term “terrorist.” The court held that the definition is deliberately broad so as to encompass a pair of kidnappers and those who sold the kidnappers a gun and a rope.

LAFC argued that the organization Hussain belonged to in Pakistan, MQM-H, should not be considered a terrorist organization because the violence was not formally authorized and it had no clear political agenda. In addition, Hussain should not be labeled a terrorist because he did not know about many of its violent activities and did not authorize them. LAFC seemed to ignore the fact that the U.S. State Department officially lists MQM-H as an “undesignated terrorist organization,” a much longer list than the main terrorism list which includes Al Qaeda.

The court rejected LAFC’s argument that Hussain, who admitted to receiving firearms training and regularly carried a weapon, was essentially an innocent bystander. Hussain was active in MQM-H between 1991 and 1996, two years after he came to the U.S. While in Pakistan, between 1991 and 1994, Hussain was a “high-level official” in the organization. He was a “sector chief” in a region containing 100,000 Mohajirs, of whom 2,000 belonged to his organization and thus were under this command. During that period, MQM-H members committed numerous acts of violence against members of the rival MQM-A, the main political party representing the interests of Mohajirs. Members of both organizations were often involved in violent clashes over territory in Karachi. MQM-H also attacked other ethnic militants and government forces. MQM-H was widely regarded as an especially ruthless group. The Pakistani newspaper Dawn reported that, “Its leader Afaq Ahmed Khan and his cadres had constituted the most ruthless elements of the MQM’s violent wing. The Press as well as human rights organizations confirm what it is public knowledge – that the MQM-H practices terror and extortion as does MQM.” On the streets of Karachi, MQM-H was synonymous with evil. Whenever a brutal killing occurred or a tortured corpse discovered, people assumed it was the handiwork of MQM-H.

Essentially, MQM-H was no more than a vicious organized crime syndicate with no real political agenda. That being said, Afaq Ahmed Khan, Hussain’s close confidante, is well known for his stridently anti-American views. Indeed, MQM-H was strongly suspected in the murder of two Americans in 1995 who worked for the consulate in Karachi. When police began cracking down on MQM-H for those murders and the spiraling violence in Karachi, Ahmed said, “We are being punished for our anti-American stance…Just because we oppose U.S. interests, we are being blamed for killing the U.S. citizens.” Just days before the Americans were murdered, Ahmed issued a statement in Pakistani newspapers that said, “We will defeat the American designs in Karachi and will teach them a lesson.” The speculation was that Ahmed may have targeted the Americans in retaliation for the Pakistani government’s arrest of Ramzi Yousef, the mastermind behind the 1993 World Trade Center bombing. All of these events occurred while Hussain was still very much involved in running MQM-H.

Given the overwhelming evidence about MQM-H, the court dismissed LAFC’s argument that Hussain was innocent of being involved in terrorism because the violence was unauthorized and had no clear political agenda.

“[T]he acts of violence (including almost daily killings in 1993 and 1994, while Hussain was still an MQM-H official in Pakistan) were so frequent that Hussain could not have failed to learn about them – indeed, he admitted he knew about them – and to learn that they had not been denounced by the organization’s leadership, of which he was a part.” The court concluded, “Hussain is removable both for fraud and for material support of terrorism.”

However, Hussain can not be deported to Pakistan because that would violate the Convention Against Torture. As stated in its decision on LAFC’s habeas corpus petition, the appeals court ruled that an alien can not be held for more than six months after his order for deportation if “there is no significant likelihood of removal in the reasonably foreseeable future.” The clock for Hussain began running in November 2007. Hussain was released from jail in early June. He must wear a bracelet for electronic monitoring to prevent him from trying to flee while the government figures out how it can legally deport him.

LAFC is still acting as counsel for Hussain.