SHARIAsource

Two Uzbek “independent Muslim” men, Bekhzod Bakhtiyarovich Yusupov and Ismoil Samadov, applied for asylum and withholding of removal and relief under the Convention Against Torture (CAT), 8 U.S.C. §1231(b)(3)(A). Both men had entered the country on student visas and subsequently remained in the United States illegally. The Board of Immigration Appeals found that, while the men would be eligible for asylum under CAT, the national security exception to withholding removal, 8 U.S.C. §1231(b)(3)(B)(iv), applicable according to the Attorney General when “there is evidence that would permit a reasonable person to believe that the alien may pose a danger to national security,” barred the Board from allowing the men to stay in the country. The Court reversed and remanded the case, as the congressional intent indicated that the proper requirement for the national security exception is “is a danger” and not the “may pose a danger” argued by the Attorney General.

Additional information. This case would be heard by the 3rd Circuit again in Yusopov v. Att’y Gen., Nos. 09-3074, 2011 WL 2410741 (3rd Cir. 2011).  8 U.S.C. §1231 (b)(3)(A) provides that “…the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion”.  8 U.S.C. §1231(b)(3)(B)(iv) says that withholding of removal detailed in (b)(3)(A) would not apply if “here are reasonable grounds to believe that the alien is a danger to the security of the United States.”

Holding: In a judicial proceeding to determine whether a defendant should be denied entry to the United States, the court is not bound by the decision of a U.S. customs officer or collector. Rather, it must investigate and weigh the evidence offered by both parties, including any visas or certificates from defendant refuting evidence from the government.

Procedural posture: United States commissioner ordered defendant, a Chinese immigrant with a student visa, deported from the U.S., based on a decision of the deputy collector at the port where defendant had tried to enter the country. Defendant appealed. Islamic law is not directly relevant, except that the Court notes that some of the alleged evidence on which the deputy collector based his decision was so intangible that “the collector could have justified his course as well by asserting . . . that it was supported by the revelations of the Koran.”

Judgment: Reversed and remanded in an opinion authored by Judge Coxe.

Facts: The defendant applied for admission to the United States at the port of Malone, NY, on Oct. 13, 1884, with a valid certificate permitting him to enter as a student. The deputy collector at Malone initially found the defendant’s papers to be valid. However, two days later, he met a Mr. Clemenshire in New York, who said that the people at the address at which the defendant said he would be staying in the U.S. knew nothing about the defendant and that the defendant was actually going to work “in laundry” in Connecticut. The deputy collector then telegraphed the port to have the defendant returned to Montreal. At the defendant’s deportation hearing, the commissioner ordered the defendant deported after finding the deputy collector’s decision final and controlling.

The U.S. District Court for the Northern District of New York found that the defendant had not received a fair hearing. It found that the collector’s action “was based upon an irrelevant rumor,” because Mr. Clemenshire’s information was “conjecture.” Having previously believed the defendant’s papers to be valid, the collector’s subsequent decision was not based on valid statutory grounds. Furthermore, the commissioner was not barred from investigating and deciding the case on the merits; he had a duty to determine the status of the defendant by investigating the entry certificate and any contrary proof a customs officer might introduce. Therefore, the decision was reversed and remanded for the commissioner to reconsider based on the evidence offered by each party.