Judge: Hammoudeh can sue ICE now
The federal judge says "One day of illegal detention is a violation of the Constitution."
By MEG LAUGHLIN
Published March 23, 2006
TAMPA - In what could be a precedent-setting decision Wednesday, a federal judge ruled that Sameeh Hammoudeh should not have to wait six months before challenging the constitutional right of immigration officials to keep him in custody while awaiting deportation.
"The Fifth Amendment is not triggered by the passage of time," said U.S. District Judge James Whittemore. "Mr. Hammoudeh has a viable cause of action."
On Dec. 6, Hammoudeh was acquitted of all charges as a co-defendant in the terrorism-related trial of Sami Al-Arian, but faces deportation after pleading guilty in another case. He remains in jail, under orders from Immigration and Customs Enforcement.
Hammoudeh has sued, challenging ICE's claim that it could hold him for up to six months without being required to show legal cause for doing so.
Government attorneys had argued that Hammoudeh's plea for due process was "premature." They relied upon an appellate court reading of a U.S. Supreme Court decision in the Zadvydas case.
There the appeals court held that noncitizens who are to be deported cannot argue that their detention violates their constitutional rights until they have been incarcerated more than six months.
Judge Whittemore disagreed with that interpretation, saying, "One day of illegal detention is a violation of the Constitution."
Miami immigration attorney Ira Kurzban called the judge's ruling very significant for thousands of noncitizens who are incarcerated by ICE while waiting to be deported.
"By saying that liberty is at stake from the day of incarceration and not dependent upon time, Whittemore is interpreting the Supreme Court decision in the Zadvydas case in a way that could be very important to many people," said Kurzban.
But Whittemore also said that, while he supported Hammoudeh's right to make a due-process claim, he does not think his constitutional rights had yet been violated.
"I cannot find his detention exceeds the period of time reasonably necessary to secure his removal," said the judge.
Hammoudeh is jailed while waiting to be deported to the Palestinian territories, as part of a plea agreement in a separate tax and immigration fraud case. Both he and his wife received probation with no jail time as part of the agreement. Hammoudeh's wife was deported Feb. 7 without jail time, while he remains in jail, despite his acquittal in the Al-Arian case.
Whittemore said he did not yet find the length of Hammoudeh's detention, 105 days beyond his acquittal, unreasonable.
Before he was acquitted, Hammoudeh was incarcerated for almost three years because of the charges in the terrorism-related case. But Whittemore said the clock on his right to a due-process claim did not actually begin ticking until his acquittal.
Whittemore said he was willing to give the government until May 25 to work out Hammoudeh's release. After that, he said, he would hold a status conference and set a hearing to see exactly why Hammoudeh was still imprisoned.
"But it may be moot," said the judge. "He may be removed by the May 25 hearing."
In a phone call Wednesday night to the St. Petersburg Times, Hammoudeh said he was encouraged by the judge's support of his right to ask for due process, but was depressed he was still in jail.
"In America, now, it is very difficult to get justice if you're not a citizen," said Hammoudeh. "But, at least, a federal judge has said he is watching and willing to put the pressure on."
Meg Laughlin can be reached at 813 226-3365 or mlaughlin@sptimes.com