## Facts

- Sameh Sami S. Khouzam, an Egyptian citizen and Coptic Christian, arrived in the United States in 1998; U.S. officials canceled his visa during travel after being told Egypt accused him of murder and detained him on arrival.
- Immigration authorities denied asylum and statutory withholding of removal due to “serious reasons to believe” he committed murder, but granted deferral of removal under the Convention Against Torture (CAT) after finding it was more likely than not he would be tortured if returned to Egypt; medical evidence corroborated prior torture.
- Khouzam remained in immigration detention for approximately eight years and was released in 2006 when removal did not appear imminent.
- In 2007, Egypt provided diplomatic assurances that Khouzam would not be tortured if returned.
- DHS re-detained Khouzam and terminated his CAT deferral based on the assurances without providing notice of the assurances, access to their contents, or a hearing to contest their reliability.

## Issues

1. Whether the REAL ID Act stripped district courts of habeas jurisdiction over challenges to DHS’s termination of CAT deferral and imminent execution of a removal order.
2. Whether the court of appeals had jurisdiction via petition for review to examine DHS’s termination of CAT deferral based on diplomatic assurances.
3. Whether terminating CAT deferral without notice and an opportunity to be heard before an impartial decisionmaker violated the Fifth Amendment Due Process Clause.
4. Whether DHS complied with the statutory and regulatory framework governing CAT deferral and its termination.

## Decision

- The Third Circuit reversed the district court’s grant of habeas relief, holding the REAL ID Act required channeling such claims to a petition for review in the court of appeals.
- The court held it had jurisdiction over Khouzam’s petition for review because DHS’s termination of deferral and move to execute removal was reviewable within the removal-order review scheme.
- On the merits, the court granted the petition for review, holding DHS’s termination procedure violated due process.
- The court remanded to the Board of Immigration Appeals for further proceedings consistent with its opinion.

## Legal Principles

- After the REAL ID Act, challenges that are, in substance, to removal orders or their execution generally must proceed by petition for review in the court of appeals rather than by district-court habeas.
- Where the government has previously determined under CAT that removal would more likely than not result in torture, termination of CAT deferral based on diplomatic assurances must satisfy the Fifth Amendment’s procedural requirements.
- Due process in this setting requires, at minimum, notice of the proposed termination and a meaningful opportunity to contest the reliability and sufficiency of the assurances before an impartial decisionmaker.
- Diplomatic assurances are not categorically invalid, but they cannot justify terminating CAT deferral through an ex parte administrative process that denies the affected person a fair chance to challenge their adequacy.

## Conclusion

The Third Circuit held that although the district court lacked habeas jurisdiction under the REAL ID Act, DHS violated due process by terminating CAT deferral based on diplomatic assurances without notice and a meaningful hearing before a neutral adjudicator, and it remanded for further proceedings.


Khouzam v. Att’y Gen., 549 F.3d 235 (3d Cir. 2008)