The Long Arm of 'Secret' Evidence

An immigrant held for overstaying his visa, and later accused of having links to terrorists, asks a federal judge to free him

Wendy Davis
New Jersey Law Journal
August 30, 1999

Hany Kiareldeen came to New Jersey from his native Gaza in 1990 to study English in college. He enrolled in school but left in 1993 after he got married. Since then, he fathered a daughter, got divorced and remarried, ultimately making a home with his second wife and stepson in Bloomfield while working in an electronics store.

But his life lost all semblance of normalcy on March 27, 1998, when the FBI and Immigration and Naturalization Service arrested him for having overstayed his student visa.

His lawyer, Newark solo practitioner Regis Fernandez, asked for a deportation hearing. He argued that Kiareldeen should be allowed to stay in this country based on his marriage to an American citizen.

But the government opposed Kiareldeen's application, contending there was "secret information" linking him to the terrorists responsible for bombing the World Trade Center in February 1993.

On April 2, 1999, after four days of testimony -- during which the basis for the terrorist allegations was never disclosed to Kiareldeen or Fernandez -- Immigration Judge Daniel Meisner ordered that Kiareldeen be granted permanent resident status and released on $1,500 bond. 

But the government obtained an emergency stay of that order and, on June 29, 1999, the Board of Immigration Appeals ruled 2-1 to continue the stay pending appeal.

Now, after 17 months in prison, the 31-year-old immigrant is seeking his freedom in federal court.

On Aug. 19, Fernandez -- joined by David Cole, a professor at Georgetown University Law Center in Washington, D.C.; Nancy Chang of the Center for Constitutional Rights in New York City and Houeida Saad, an Arlington, Va., solo -- filed a writ of habeas corpus challenging the continued detention.

In the writ, Kiareldeen's lawyers asked that he be immediately released from detention or allowed to post the $1,500 bond that the immigration judge had previously ordered.

During a hearing Friday, U.S. District Judge William Walls heard arguments and reserved decision.

Kiareldeen's lawyers contend that for immigrants, particularly from the Middle East, the government's attempt to use secret evidence in immigration court is an increasingly real threat. At least 20 people throughout the country, almost all of Arab descent, are being detained based on secret evidence, according to Chang of the Center for Constitutional Rights.

Cole and the center also represent Nassar Ahmed in New York, who is in a situation similar to Kiareldeen's. Ahmed has been held for more than three years on secret evidence. That case has been bouncing between federal court and the Board of Immigration Appeals for a while but, Cole says, might soon be back in federal court.

During Friday's hearing, Cole contended that the use of secret evidence is unconstitutional as a matter of principle. "The most basic principle of due process is that when the government seeks to take action against an individual, it must put its evidence on the table," he said.

Secret evidence is especially offensive in this case, where the immigration judge found it to be uncorroborated, he added. For example, Cole said, the government's most specific allegation was that Kiareldeen had participated in a meeting, at his Nutley residence, with the World Trade Center bombers one week before the bombing. But the immigration judge found that Kiareldeen was not even living in Nutley at that time.

The government, represented by Douglas Ginsburg of the Office of Immigration Litigation in Washington, D.C., and James Clark III of the U.S. Attorney's Office in Newark, argued in court Friday that Walls had no jurisdiction to hear the habeas petition. 

Ginsburg contended that the U.S. Supreme Court's decision this February in Reno v. American-Arab Anti-Discrimination Committee, 97-1252, deprived the district courts of jurisdiction over Kiareldeen's claim. He added that the only federal court that can entertain the case is the circuit court.

Cole, who had represented the immigrants in Reno at the Supreme Court, countered that the government was reading the case too broadly. Reno, he said, dealt only with the attorney general's decisions to commence proceedings, adjudicate cases or execute removal orders.

Ginsburg also argued that Kiareldeen had not exhausted his administrative remedies, because the Board of Immigration Appeals has yet to decide an appeal of Meisner's decision to grant $1,500 bail. But to Cole, the board effectively decided this issue when it granted the government's application to stay the bail order.

When Walls asked the government whether it would be constitutional to keep Kiareldeen in jail indefinitely, Ginsburg responded that Kiareldeen could get out at any time if he agreed to go back to Gaza.

Some of Kiareldeen's friends and family who were in the courtroom laughed out loud at that suggestion. For Kiareldeen, returning to Gaza is unrealistic. Cole noted for the court that Kiareldeen is married to an American woman and has an American daughter and stepson who live here.

"Our main attack is on secret evidence in general," says Fernandez, who has represented Kiareldeen throughout his immigration difficulties.

Fernandez, as well as Kiareldeen's other attorneys, strongly suspect that the source of the government's secret information was Amal Kamal, Kiareldeen's former wife with whom he was engaged in a bitter custody dispute. 

"We'll never know and the judges will never know, but I'd be willing to bet the farm it's the ex-wife," says Fernandez.

Kamal had previously brought domestic charges against Kiareldeen on at least six occasions and all of them were dismissed, according to Kiareldeen's attorneys.

Kamal's attorney, New York solo practitioner Jack Sachs, says he does not believe Kamal was the source of the government's information. However, he adds that he was not representing her at the time of the allegations and cannot be certain.

Meanwhile, Kiareldeen's attorneys are hoping for a speedy decision in this case. Ginsburg asked for three weeks to file the government's brief, but Walls told all lawyers to have their briefs submitted by Sept. 13. Walls also shot down a request by Ginsburg to exceed the 40-page limit. "Absolutely not. No, no, no, absolutely not," Walls repeated. "If the quality of what you are saying takes more than 40 pages, then the quality is suspect. Less is more."

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