Interim Decision #3255
Interim Decision #3255
In re Mohammad J.A. KHALIFAH, Respondent
File A29 457 661 - San Francisco
Decided as amended October 5, 1995
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien subject to criminal proceedings for alleged terrorist activities in the country to
which the Immigration and Naturalization Service seeks to deport him is appropriately ordered
detained without bond as a poor bail risk.
FOR RESPONDENT: Marc Van Der Hout, Esquire, San Francisco, California
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Shilpa Khagram, General
Attorney
BEFORE: Board Panel: SCHMIDT, Chairman; VACCA, Board Member; CASSIDY, Temporary Board Member
SCHMIDT, Chairman:
ORDER:
PER CURIAM. In a decision dated January 9, 1995, the Immigration
Judge denied the respondent’s application for release on bond and ordered
that the respondent be held without bond pending completion of deportation
proceedings in his case. On January 13, 1995, the respondent filed a motion
to reopen the bond proceedings and to reconsider the January 9, 1995, decision of the Immigration Judge. In a decision dated January 19, 1995, the
Immigration Judge denied the respondent’s motions. The respondent has
appealed from these decisions of the Immigration Judge dated January 9,
1995, and January 19, 1995. The appeal will be dismissed.
The record reflects that the respondent is 38-year-old native and citizen of
Saudi Arabia. He entered the United States as a nonimmigrant visitor on
December 1, 1994, through the presentation of a nonimmigrant visa issued
on August 3, 1994, by the American Embassy in Jiddah, Saudi Arabia. On
December 16, 1994, an Order to Show Cause was issued in his case which
alleged that on December 16, 1994, the Deputy Assistant Secretary of State
for Visa Services, United States Department of State, issued a Certification
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of Revocation of the respondent’s nonimmigrant visa effective as of the date
of visa issuance, and the respondent was charged with deportability under
sections 241(a)(1)(A) and (B) of the Immigration and Nationality Act, 8
U.S.C. §§ 1251(a)(1)(A) and (B) (1994), for lack of a valid entry visa and for
being in the United States in violation of law. The Order to Show Cause also
alleged that the respondent had provided financial support for bombing
attacks at cinemas in Jordan which resulted in injuries and charged the
respondent with deportability under section 241(a)(4)(B) of the Act as an
alien who has engaged in terrorist activity. On January 5, 1995, the Immigration and Naturalization Service withdrew the charges of deportability and
issued an amended Order to Show Cause which alleged that on January 5,
1995, the Secretary of State made a determination that pursuant to section
241(a)(4)(C) of the Act, the respondent’s presence in this country would have
potentially serious adverse foreign policy consequences for the United
States. The respondent was charged with deportability under that provision.
In conjunction with the issuance of the Order to Show Cause, the respondent
was detained without bond and he requested a bond determination hearing
before the Immigration Judge.
At the bond hearing, the Service maintained that the respondent should be
detained without bond because he posed a threat to national security and
because he would flee rather than face deportation. In connection with these
allegations, the Service presented the Certification of Revocation of the
respondent’s nonimmigrant visa, which action was based upon the respondent’s having allegedly engaged in terrorist activity within the scope of section 212(a)(3)(A)(ii) of the Act,
8 U.S.C. § 1182(a)(3)(A)(ii) (1994). The
Service also presented correspondence from Warren Christopher, United
States Secretary of State, to the Attorney General expressing his belief that
the respondent’s presence in this country is detrimental to the foreign policy
interests of this country as specified in section 241(a)(4)(C)(i) of the Act and
requesting that the respondent be deported to Jordan. The Service also presented correspondence from the United States Deputy Attorney General to
the Immigration Judge stating that the deportation of the respondent to a
country other than Jordan would be prejudicial to the interests of the United
States and that the respondent should be deported to Jordan.
At the bond hearing, the Service also presented evidence detailing the
respondent’s alleged role in terrorist activities in Jordan. Such evidence consisted of correspondence from Philip C. Wilcox, Jr., United States Department of State Coordinator for Counter Terrorism; a letter from the Jordanian
Ambassador to the United States, Fayez A. Tarawaneh, requesting that the
respondent be returned to Jordan; a statement from Major General Mohammed Manko, Attorney General for the State Security Court in Jordan; and telexes to the American Consulate in Jordan concerning criminal proceedings
against the respondent in Jordan. These materials indicate that the respondent
was indicted in Jordan of conspiracy with the intention of committing
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terrorist acts. The indictment describes a deliberately unnamed organization
in Jordan established for the purpose of fighting tyrant Arab rulers, resisting
the “peace process,” combating vice, and fighting Jews and Americans. This
documentation alleges that the organization collected arms and explosives
and attempted a number of bombings in cinemas in Jordan, and also a supermarket there, in January 1994. The respondent’s alleged role was training
one of the organization’s founders at a training camp in the Philippines and
agreeing to finance the organization after a visit to Jordan to assess the organization’s capabilities in early 1994. As a result of the legal proceeding in
Jordan, the respondent was evidently sentenced to death in absentia for his
role in the terrorist attacks.
The respondent objected to the acceptance of the documentation submitted by the Service into evidence. The respondent requested that Mr. Wilcox
be compelled to testify at the bond hearing and argued that if he did not
appear, his correspondence should be disregarded. The respondent also
moved to compel the Service to provide all inculpatory materials in its possession and in the possession of a number of designated agencies and to provide him with the materials that form the basis for the opinions of Mr.
Wilcox.
For his part, the respondent conceded that he has been sentenced to death
as a result of proceedings in Jordan, that the proceedings were held in absentia, and that the proceedings related to accusations of terrorism. The respondent contends, however, that the evidence against him consisted of a
statement of an alleged coconspirator and that such statement was coerced,
having been obtained after the maker had been physically abused by Jordanian officials. In support of this assertion, the respondent has presented what
he claims is the court statement of a codefendant in the Jordanian proceeding
in which that individual repudiates his prior inculpatory statement, asserting
that it was obtained by torture. The Service and the respondent agree that in
any event, if the respondent were to return to Jordan, his conviction would be
null and he would be retried. The respondent, however, doubts the fairness of
Jordanian proceedings relating to security matters such as presented by his
case and has submitted background materials, including reports from
Amnesty International on this issue, to support his concerns.
The respondent has also submitted documentation concerning his good
character, including personal references from officials of the Philippines, the
country where he apparently resides. Such materials reflect his membership
and participation in the activities of the International Islamic Relief Organization and the International Relations and Information Center.
Finally, the respondent requested that if he must be detained, he be placed
under house arrest with electronic monitoring. On this issue, he has submitted correspondence from a group which has performed such monitoring for
various court systems in this country and from individuals who are willing to
accept him into their homes for such monitoring.
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In considering the respondent’s bond application, the Immigration Judge
initially denied the respondent’s motion to subpoena Mr. Wilcox and to compel disclosure of any inculpatory materials in the possession of the Service
and other government agencies. In his assessment, the Immigration Judge
relied on Matter of Chirinos, 16 I&N Dec. 276 (1977), noting that bond proceedings should be prompt and may be informal with more relaxed rules of
evidence so long as such proceedings are fundamentally fair. The Immigration Judge also concluded that the motions need not be granted because he
did not rely on such evidence in his decision.
In considering the merits of the bond request, the Immigration Judge concluded that the respondent should be detained without bond because there is a
serious risk that he would flee rather than face deportation. The Immigration
Judge cited a number of factors in his decision, including the serious charge
of deportability in the respondent’s case. The Immigration Judge also noted
that both the Governments of Jordan and of the United States seek the respondent’s return to Jordan, where the respondent faces serious charges. He
observed that the respondent in his submissions exhibited a strong distrust of
the Jordanian criminal justice system which the Immigration Judge concluded provided the respondent with a great motivation to flee rather than
face deportation.
Finally, the Immigration Judge did not accept the respondent’s proposal
for electronic monitoring with a bond. In this regard, the Immigration Judge
determined that it was not clearly established that the organization which the
respondent proposed to have monitor him had adequately demonstrated its
capability to do so. The Immigration Judge determined, moreover, that
because he found the risk of flight was so great and the governmental interest
so strong in this case, such proposal was not appropriate. He also noted that
the individuals with whom the respondent proposed to reside while subject to
monitoring did not know him personally.
On January 13, 1995, the respondent submitted his motion to reopen and
reconsider the January 9, 1995, decision of the Immigration Judge. As
grounds for reopening, the respondent stated that subsequent to the hearing,
he obtained a copy of the confession of his alleged coconspirator in the terrorist activities in Jordan and maintained that such confession does not incriminate him. He also presented a letter from the director of an Islamic school in
the Philippines which explains that the respondent’s possession when he was
apprehended in this country of a manual containing instructions for the building of bombs and incendiary devices was innocent. He also submitted further
correspondence from the organization which has proposed to electronically
monitor his whereabouts if he is released in which the organization asserts
that it can guarantee his continued presence for deportation proceedings. The
respondent also maintained that the Immigration Judge was improperly
influenced in his decision by pressure from the personal intervention of the
Secretary of State and the Attorney General and that the Immigration Judge
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erroneously relied on foreign policy concerns. Finally, the respondent
asserted that the substituted charge of deportability under section
241(a)(4)(C) of the Act is defective in that such provision is unconstitutionally vague.
In his consideration of the respondent’s motion, the Immigration Judge
determined that the respondent’s contentions were without merit. The Immigration Judge found that the additional documentation concerning the confession of the alleged coconspirator and the correspondence from the Islamic
official in the Philippines were irrelevant because he did not rely on those
matters in his initial determination. The Immigration Judge reiterated that as
the respondent faces the prospect of criminal proceedings in Jordan, such fact
gives rise to the risk that he might flee rather than face possible deportation.
The Immigration Judge also discounted the documentation concerning the
organization which the respondent has proposed to monitor his whereabouts.
The Immigration Judge did so finding that where, as here, the risk of flight is
great, possibly long term monitoring in the homes of individuals who do not
purport to know the respondent personally is inadequate to assure the respondent’s appearance at future proceedings. The Immigration Judge also denied
that political pressure influenced his decision, observing that his decision
was based upon the respondent’s likelihood of absconding rather than, as the
respondent asserts, foreign policy concerns. Finally, the Immigration Judge
found that he had no jurisdiction to consider the constitutionality of the statute he administers. Matter of U-M-, 20 I&N Dec. 327 (BIA 1991), aff’d,
989
F.2d 1085 (9th Cir. 1993). On appeal, the respondent reiterates his arguments and challenges the Immigration Judge’s assessment.
Based upon our review of the record, we find that the Immigration Judge
properly determined that the respondent must be detained without bond. We
have reviewed the Immigration Judge’s decisions and find them well reasoned and correct and we adopt his analysis. The Immigration Judge properly
based his decision on the finding that the respondent presents a strong risk
that he will flee rather than appear for the deportation process. In making our
determination, we have considered the respondent’s allegations of error on
appeal but find them to be without merit.
The respondent initially claims that the finding that he is a flight risk is
unsupported by admissible evidence as the invalidation of the respondent’s
nonimmigrant visa was not authenticated and the charge of deportability
based upon the visa invalidation had been withdrawn. In our review, we find
that even if we ignore the visa invalidation as a factor, there is ample basis to
find that the respondent presents a serious risk of nonappearance for deportation proceedings. As the respondent is facing serious criminal charges in Jordan in proceedings whose fairness he doubts, such situation is sufficient
without more to conclude that the respondent is a poor bail risk.
The respondent also claims that the Immigration Judge was improperly
influenced by foreign policy considerations in his decision. We note that this
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argument was presented to the Immigration Judge who specifically denied
such influence and we see no evidence of it in our review of his actions. We
note, however, that it is appropriate to consider that Jordan has been designated as the country of deportation and Jordan seems willing to accept the
respondent, yet the respondent understandably does not appear anxious to be
returned to that country as he faces criminal charges there.
The respondent also claims that the Immigration Judge erred in finding he
was a flight risk based on the Jordanian conviction inasmuch as the respondent maintains that he has not been so convicted. As the Immigration Judge
correctly noted in his decision, many of the respondent’s own submissions
indicate that he has been convicted of participation in a terrorist conspiracy in
Jordan. Moreover, as the Immigration Judge properly found and as the
respondent concedes in his appellate brief, the respondent is subject to a new
trial if he returns to Jordan. Insofar as the respondent has expressed distrust
concerning the fairness of such proceeding, it may fairly be concluded that he
will attempt to avoid return to Jordan, even to the extent of evading a deportation order if such order should be issued in his case.
The respondent also cites the letters submitted in support of his good character in contending that release on bond is warranted. However, we find, as
did the Immigration Judge, that such evidence does not outweigh the great
risk that the respondent will abscond rather than surrender for deportation
should deportation be ordered.
The respondent also maintains on appeal that the Bail Reform Act applies
in his case and he contends that under such procedure, he must be released on
bond. In support of this contention, he relies upon Matter of San Martin, 15
I&N Dec. 167 (BIA 1974). Matter of San Martin involved an alien who had
been released on bond in a pending criminal matter, a situation not presented
by the respondent’s case. Moreover, that decision did not hold that the Bail
Reform Act is applicable per se to immigration proceedings but merely
observed that many of the factors to be considered under that statute are
applicable to immigration proceedings by virtue of the regulations governing
such proceedings and Board precedent decisions.
Finally the respondent contends the Immigration Judge erred in denying
the respondent’s motion for discovery of inculpatory evidence, the subpoena
of Mr. Wilcox, and the production of documents relating to the respondent in
possession of other government agencies. It is well settled that there is no
requirement in bond proceedings for a formal hearing and that informal procedures may be used so long as no prejudice results. Matter of Chirinos,
supra. As there is no right to discovery in deportation proceedings, no such
right exists in the less formal bond hearing procedure. See Matter of Exilus,
18 I&N Dec. 276 (BIA 1982). Moreover, we fail to see that the respondent
has demonstrated prejudice from the Immigration Judge’s ruling. As the
respondent concedes that he is subject to criminal proceedings in Jordan,
including retrial on the conspiracy charge, such fact alone presents him as a
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poor bail risk independent of any consideration of the evidentiary materials
to which he objects.
Because the Immigration Judge properly concluded that the respondent is
a very poor bail risk, he correctly ordered the respondent detained without
bond. Accordingly the appeal from the decisions of the Immigration Judge
dated January 9, 1995, and January 16, 1995, is dismissed.
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