Counterterrorism Blog

For the past two years, the US government has been trying to deport Abdel Jabbar Hamdan, a Palestinian who the Government has charged is an illegal alien for having overstayed his nonimmigrant student visa when he first entered the United States some 27 years ago. The Government has already proven its deportation case before an Immigration Court and the Board of Immigration Appeals (BIA), as Hamdan has been ordered removed (deported) from the United States based on the charges filed by Immigration and Customs Enforcement (ICE). The Immigration Court and BIA have also denied Hamdan’s requests for relief from deportation. Hamdan has exercised his right to appeal his case to the US 9th Circuit Court of Appeals, where the deportation issue currently resides.

During the past two years, Hamdan has been detained by the Government pending those removal proceedings. The Government has claimed Hamdan was a key fundraiser for an Islamic charity, the Holy Land Foundation for Relief and Development, that has been linked by the Feds to the terrorist organization Hamas. Other Holy Land Foundation officials have been charged criminally by the Federal government with various terrorism-support related crimes and those cases are in various stages of prosecution. Hamdan was not charged with any crime, but with the noted immigration removal violation. Nonetheless, the Government sought to keep him detained due to his links to the Holy Land Foundation and alleged support to Hamas. Hamdan claimed his fund-raising was only for humanitarian purposes and has been seeking his release during the deportation case. Not surprisingly, Hamdan had a small army of supporters among various Muslim advocacy and left-wing legal groups.

In fact, the ACLU led the legal charge for Hamdan’s release in habeas corpus proceedings in US District Court in Los Angeles. Those proceedings, separate from the actual underlying deportation violation for which Hamdan has already been found culpable and that is on separate appeal, have just succeeded in getting Hamdan released from custody, thanks to the 9th Circuit Court of Appeals siding with the ACLU position in the habeas action against the Government. To their credit, ICE and the Department of Justice fought to the end on the custody issue trying to appeal the US District Court decision to the 9th Circuit, only to be turned down. Anyone with legal experience who knows the persuasion of the US 9th Circuit Court of Appeals should not be surprised by this decision. Hamdan is now released on an order of supervision that, according to an ICE statement, requires him to be electronically monitored and report regularly to Government officials while his deportation case continues.

Regardless of how the 9th Circuit may rule on the underlying deportation matter, it is entirely possible the Hamdan case may be appealed to the US Supreme Court. If Hamdan loses, he and his ACLU representatives will surely take a shot. If the Government loses (and the Government often does not do well in deportation cases before the 9th Circuit) it will likely appeal to the Supremes, where more often than not adverse (to the Government) 9th Circuit deportation decisions are overturned.

The Hamdan case is a perfect example of many things that are wrong with our immigration “non”-system today...and have been for many years. Hamdan, like millions of others, came to the US 27 years ago on a temporary visa for a supposed short-term stay. Like millions of others, he violated the terms of his lawful admission to the US, violated the trust this country placed in him when he was issued the visa and allowed to enter, and never left. Regardless of all the excuses and attempted legalities between then and now, and his advocates have postured many and they were all discounted for merit in court because Hamdan was found to be deportable as charged, Hamdan simply remained an overstay nonimmigrant entrant alien...for well over two decades. It took that long, and his association with an alleged terrorist fund-raising charity, to identify and locate him.

Then the legal proceedings against Hamdan began. Even with him being detained, it took two years to get to the point where there was a removal order sanctioned by the Board of Immigration Appeals. Now, with Hamdan exercising his appellate rights to the US Circuit Court level, the case will likely be on hold for many more months, perhaps even years, especially if the appeals go to the Supreme Court. Even if the Government ultimately prevails and wins a final “Final Order” against Hamdan, he is a stateless Palestinian and physically deporting him, especially after he has been linked by the Government to terror support activities, may be especially problematic. It takes all this to (maybe) deport someone who overstayed their temporary visa status by decades.

Can anyone look at this process objectively and believe this system works? It certainly does not work well. These are among the chief reasons there are upwards of 400,000 fugitive alien “absconders” in the US who skipped out on their final deportation orders. It’s why the Border Patrol had (and still has) the infamous “catch and release” program for non-Mexicans apprehended at the border, with more than 85% never appearing for their scheduled Immigration Court hearings. It is also why approximately 40% of the illegal alien population in the US is comprised of nonimmigrant visa violators...people like Hamdan who entered the US “legally” on a tourist or student visa and simply never left, because they knew there would be little chance they would be caught and if caught the process to remove them would be so bogged down and time consuming, especially if they are released pending those proceedings, they could play that system for even more time and eventually just disappear again into the illegal netherworld.

If Congress and our other political leaders genuinely want to get serious about making immigration enforcement more effective, and considering the importance such matters are relative to national security that effort should be a notable priority, then streamlining and substantially shortening the deportation “due process” system would be a very good start.