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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Filed December 5, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1823

HANY MAHMOUD KIARELDEEN

v.

JOHN ASHCROFT, Attorney General; IMMIGRATION AND
NATURALIZATION SERVICE; PAUL SCHMIDT, Chair,
Board of Immigration Appeals; KEVIN D. ROONEY, Acting
Commissioner, Immigration and Naturalization Service;
ANDREA QUARANTILLO, District Director, Newark, INS;
RALPH GREEN, Warden Hudson County
Correctional Center,

       Appellants

Appeal from the United States District Court
for the District of New Jersey
District Judge: William H. Walls
(D.C. Civil No. 99-03925)

Submitted under Third Circuit LAR 34.1(a)
September 10, 2001

Before: MANSMANN, RENDELL and ALDISERT,
Circuit Judges.

(Filed: December 5, 2001)


.

       STUART E. SCHIFFER, Acting
        Assistant Attorney General
       MICHAEL P. LINDEMANN, Assistant
        Director
       DOUGLAS E. GINSBURG, Attorney
       LYLE D. JENTZER, Attorney
       Office of Immigration Litigation
       Civil Division, Department of Justice
       P.O. Box 878, Ben Franklin Station
       Washington, D.C. 20044

       JAMES B. CLARK, III
       Office of United States Attorney
       970 Broad Street
       Room 700
       Newark, N.J. 07102

        ATTORNEYS FOR APPELLANTS

       DAVID D. COLE
       Counsel, Center for Constitutional
        Rights
       c/o Georgetown University
        Law Center
       600 New Jersey Ave. NW
       Washington, D.C. 20001

       NANCY CHANG
       Center for Constitutional Rights
       666 Broadway -- 7th Floor
       New York, NY 10012

       REGIS FERNANDEZ
       744 Broad Street
       Suite 1807
       Newark, N.J. 07102

       HOUEIDA SAAD
       Blue Cross and Blue Shield
        Association
       1310 G Street, NW
       Washington, D.C. 20005

        ATTORNEYS FOR APPELLEE

                                2
.

       DANIEL J. POPEO
       RICHARD A. SAMP
       Washington Legal Foundation
       2009 Massachusetts Avenue, NW
       Washington, D.C. 20036

       WASHINGTON LEGAL FOUNDATION;
       U.S. REPRESENTATIVES
       SHERWOOD BOEHLERT, J.D.
       HAYWORTH, LAMAR SMITH, AND
       JOHN E. SWEENEY; U.S. SENATOR
       JESSE HELMS; ALLIED
       EDUCATIONAL FOUNDATION;
       STEPHEN FLATOW; GRAND LODGE
       FRATERNAL ORDER OF POLICE;
       and the JEWISH INSTITUTE FOR
       NATIONAL SECURITY AFFAIRS as
       Amici Curiae in support of
       Appellants Seeking Reversal.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

In the course of proceedings to remove Appellee Hany
Mahmoud Kiareldeen, an ethnic Palestinian and Israeli
citizen, from the United States, the Immigration and
Naturalization Service ("INS") relied on classified evidence
obtained by the FBI's Joint Terrorism Task Force. This
evidence suggested that Appellee was a member of a
terrorist organization, was involved in the 1993 bombing of
the World Trade Center and had made threats against
Attorney General Janet Reno.

After numerous administrative hearings, stays and
appeals, the district court granted Kiareldeen a writ of
habeas corpus, reasoning that the INS had not sufficiently
proved its case against him to justify its actions during
removal proceedings. The court later awarded him
$110,743.06 in attorney fees under the Equal Access to
Justice Act ("EAJA"), determining that the INS's detention,
and litigation in support of the detention, were not

                                3
.

substantially justified. The Attorney General and the INS
now appeal the grant of attorneys' fees. We reverse the
judgment.

The EAJA provides that "a court shall award to a
prevailing party other than the United States fees and other
expenses . . . unless the court finds that the position of the
United States was substantially justified or that special
circumstances make an award unjust." 28 U.S.C.
SS 2412(d)(1)(A); see also Comm'r, INS v. Jean, 496 U.S.
154, 159-160 (1990). The government must meet this
threshold twice. First, it must independently establish that
the agency action giving rise to the litigation was
substantially justified. Second, it must establish that its
litigation positions were substantially justified. See id. See
also Natural Resources Defense Council, Inc. v. EPA , 703
F.2d 700, 708 (3d Cir. 1983). The principal argument
advanced by the government is that its position during
removal proceedings was substantially justified. We hold
that it was, and reverse the district court's grant of
attorneys' fees.

Although the government originally took the position that
the district court lacked jurisdiction to hear this case, that
court assumed jurisdiction under 28 U.S.C. S 2241. We
have jurisdiction to review the government's appeal of the
district court's final order granting attorneys' fees pursuant
to 28 U.S.C. S 1291.

This court reviews a district court's determination of no
substantial justification in an EAJA suit for abuse of
discretion. See Morgan v. Perry, 142 F.3d 670, 682-683 (3d
Cir. 1998) (citing Pierce v. Underwood, 487 U.S. 552, 558-
563 (1988)); cert. denied, 525 U.S. 1070 (1999). This court
will not interfere with a district court's exercise of discretion
"unless there is a definite and firm conviction that the court
. . . committed a clear error of judgment in the conclusion
it reached upon a weighing of the relevant factors." Morgan,
142 F.3d at 683.

However, we may find an abuse of discretion "when no
reasonable person would adopt the district court's view" or
"when the district court's decision rests upon a clearly
erroneous finding of fact, an errant conclusion of law or an

                                4
.

improper application of law to fact." Id. at 682-683. This
court will also "review an award [of attorneys' fees] de novo
insofar as it rests on conclusions of law, such as an
interpretation of the statutory terms that define eligibility
for an award." Nat'l Ass'n of Mfrs. v. Dep't of Labor, 159
F.3d 597, 599 (D.C. Cir. 1998) (citing Love v. Reilly, 924
F.2d 1492, 1493 (9th Cir. 1991)); see also Friends of
Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 885
(8th Cir. 1995) (holding that when the abuse of discretion
standard is applied in an EAJA case, the district court's
conclusions of law are still reviewed de novo ).

I.

Kiareldeen entered the United States on a student visa on
April 27, 1990. He then violated the specific terms of his
visa by remaining in the United States after completing his
studies in 1994. On March 26, 1998, the INS served him
with a Notice to Appear charging that he was removable
under S 237(a)(1)(C)(i) of the Immigration and Nationality
Act ("INA") for failing to comply with the terms of his visa.
The service ordered him held without bond pending the
outcome of his deportation hearing.

On April 27, 1998, an immigration judge denied bond
and scheduled a removal hearing. On May 22, 1998,
Kiareldeen conceded that he violated the terms of his visa,
and then sought an adjustment of status based upon INA
S 245 (marriage to a United States citizen). The INS resisted
the adjustment of status with evidence that Kiareldeen had
filed a false birth certificate with the immigration judge. The
INS also submitted classified evidence to the immigration
judge, in camera and ex parte, alleging that (1) Kiareldeen
was a member of a foreign terrorist organization, (2) he was
involved in a meeting planning the 1993 attack on the
World Trade Center one week prior to the actual attack, at
which a suicide bombing was discussed, and (3) he later
threatened to kill Attorney General Janet Reno for her role
in convicting those responsible for the 1993 bombing of the
World Trade Center.

The INS provided Kiareldeen with several unclassified
summaries of the classified evidence of the Federal Bureau

                                5
.

of Investigation ("FBI"). The summary dated July 29, 1998,
stated that the information was obtained by the Joint
Terrorism Task Force, an FBI-supervised squad with
detailed representation from numerous law enforcement
agencies that work together on terrorism matters in the
Newark, New Jersey area. The summary stated also that
the information gathered was foreign intelligence
information based on multiple sources, which the FBI
considered to be reliable, and that the FBI had taken
"additional steps to test the veracity of the source reporting
the threat against the Attorney General." App. Vol. II at 25-
28. It emphasized that the reliability of the sources "is of
fundamental concern to the FBI" and that the
characterization of the reporting "is controlled by guidelines
set forth in the National Foreign Intelligence Program
Manual." Id. at 25. Finally, it explained that this type of
information regarding terrorist investigations is"classified
to protect against disclosure that would permit a terrorist
or suspected terrorist organization, group, or individual to
avoid preventive or detection measures, or would reveal FBI
or other intelligence agency sources and methods by which
such information is obtained." Id. at 26.

Kiareldeen responded to the accusations with character
witness testimony from family and friends, as well as other
evidence seeking to rebut the claims in the unclassified
summaries. On April 2, 1999, the immigration judge
granted his application for adjustment of status, awarded
conditional permanent resident status and released him on
bail. That same day, the INS appealed the decision to the
Board of Immigration Appeals ("Board"), which then issued
a stay of the release order.

Kiareldeen appealed the temporary stay, but the Board
denied the motion. It stated that Kiareldeen's "use of a
fraudulent birth certificate in conjunction with his
application for adjustment of status . . . [is a] serious
matter . . . [which] casts doubt on [Kiareldeen's] credibility
and on the credibility of the evidence he submitted." Id. at
62. The Board further found that the INS was likely to
prevail on its appeal, and that "there [are] sufficient
reason[s] to believe that the respondent would be a threat
to the national security . . . such that we find the

                                6
.

respondent ineligible for bond." Id. Kiareldeen also filed a
petition for a writ of habeas corpus in the district court
challenging the government's use of classified evidence to
detain him, which was also denied.

On October 15, 1999, a separate panel of the Board
issued a decision on the merits of the case granting the
adjustment of status. Because of this, the prior Board
panel lifted the stay on the release order and bond appeal.
On October 20, 1999, the district court issued an Opinion
and Order finding 8 U.S.C. S 1229a(b)(4)(B)
unconstitutional as applied and ordering Kiareldeen's
release. See Kiareldeen v. Reno, 71 F. Supp. 2d 402, 414
(D.N.J. 1999). It held that Kiareldeen's due process rights
were violated by the government's reliance on classified
information, which denied him both meaningful notice and
an opportunity to confront the evidence. Later that day, the
Board panel considering his bond ordered his release.

The following day, the INS filed a notice of appeal and
sought an emergency stay from this court. A single judge
issued a stay of execution pending further action by a
motions panel. On October 25, 1999, the INS released
Kiareldeen, withdrew its stay motion and decided not to
pursue further appeals on the merits of the habeas corpus
decision. On October 28, 1999, we denied the INS's motion
to vacate the district court decision.

In addition to ordering Kiareldeen's release, the district
court also ordered the government to pay attorneys' fees
and costs. See id. at 419. The court later vacated this part
of the order, after which Kiareldeen petitioned for fees and
costs under the EAJA. See generally 28 U.S.C. S 2412. On
April 11, 2000, the court ordered the government to pay
Kiareldeen $110,743.06 in attorneys' fees and costs. See
Kiareldeen v. Reno, 92 F. Supp. 2d 403, 409 (D.N.J. 2000).
The government now appeals the decision to award fees,
arguing that the district court abused its discretion in
determining that there was no substantial justification for
the INS's actions against Kiareldeen.

II.

We vigorously emphasize that the issue before us is solely
the grant of attorneys' fees and costs. We are not reviewing

                                7
.

the merits of the decisions in the administrative
proceedings or in the district court. It is necessary to make
this strong statement because the tenor of the briefs
submitted by the parties seems to concentrate on the
merits of the decision granting the writ of habeas corpus,
instead of on the much more limited issue of the attorneys'
fee award. Our responsibility, therefore, is extremely
limited. We must review the record and determine whether,
in opposing Kiareldeen's various contentions in the removal
and habeas corpus proceedings, "the position of the United
States was [not] substantially justified." 28 U.S.C.
SS 2412(d)(1)(A).

A.

The government argues first that it was justified in
seeking Kiareldeen's removal from the United States
because of the evidence presented by the FBI's Joint
Terrorism Task Force. This evidence alleged that Kiareldeen
was a member of a foreign terrorist organization, that he
was involved in a meeting planning the 1993 bombing of
the World Trade Center one week prior to the actual attack
and that he later threatened to kill Attorney General Janet
Reno for her role in convicting those responsible for the
bombing. In prosecuting its case, the government relied on
the alleged statements of Nidal Ayyad and Sheikh Omar
Abdel Rahman in order to implicate Kiareldeen in the 1993
bombing.

The major position asserted by Kiareldeen in the habeas
corpus proceeding was that he had been unlawfully
detained by the INS on the basis of classified information
that was not disclosed to him for national security reasons.
The government contends that it had a duty to oppose
Kiareldeen's position challenging the constitutionality of 8
U.S.C. S 1229a(b)(4)(B) as it was applied to him. The statute
provides in relevant part:

       The alien shall have a reasonable opportunity to
       examine the evidence against the alien, to present
       evidence on the alien's own behalf, and to cross-
       examine witnesses presented by the Government but
       these rights shall not entitle the alien to examine such

                                8
.

       national security information as the Government may
       proffer in opposition to the alien's admission to the
       United States or to an application by the alien for
       discretionary relief under this chapter.

8 U.S.C. S 1229a(b)(4)(B).

B.

Kiareldeen argues that his detainment was unlawful
because it was based solely upon classified evidence. He
argues that he was deprived of the "most basic elements of
due process--meaningful notice of the evidence used
against him and an opportunity to confront it." Appellee's
Brief at 18-19. He also argues that "[t]he lack of substantial
justification for the government's pre-litigation conduct is
further buttressed by the exclusively hearsay character of
the evidence it relied upon to detain Kiareldeen." Id. at 24.
Kiareldeen further argues that he was not challenging the
constitutionality of a statute, but simply the
constitutionality of applying 8 U.S.C. S 1229a(b)(4)(B) to his
particular case.

We are persuaded that Appellee's contentions, whatever
force they may have had in influencing the ultimate
administrative decisions and the district court judgment,
are insufficient to demonstrate that the government's
position either before or during litigation proceedings were
not substantially justified.

III.

As the government's arguments are fact specific, we find
it useful to consider the Appellee's contentions first.

A.

Kiareldeen vigorously argues that his detention, based
primarily upon classified evidence, denied him the due
process rights of meaningful notice and opportunity to
respond. However, the favorable outcomes in both the
administrative and district court proceedings severely dilute
the efficacy of this contention. Kiareldeen was provided with

                                9
.

several unclassified summaries of the information the INS
had submitted to the immigration judge. Though these
summaries were not highly fact-specific, ensuring that
neither the FBI's sources nor national security were
compromised, they did provide him with the "who," "what,"
"when" and "where" of the allegations against him. Armed
with this information, he then presented a considerable
amount of live testimony and documentary evidence to the
accusations.

These unclassified summaries were apparently
informative enough that he was even able to surmise the
identity of one of the FBI's informants--his ex-wife, an
individual who was "a potentially crucial source of
government information." Kiareldeen v. Reno , 92 F. Supp.
2d. at 408. She had previously levied allegations of
domestic violence, child abuse and terrorism against him.
Because she now refused to answer Kiareldeen's questions
in court, ostensibly out of fear for her own safety, the court
offered him the opportunity to submit written
interrogatories to her. Kiareldeen chose not to do so.

Although Kiareldeen argues that the information provided
him was not detailed enough to adequately respond, the
result obtained from the hearings belies that claim. In the
end, he mounted a successful defense to the government's
case, winning his case at both the administrative and
district court levels. He was released from detention, and
then was granted an adjustment of status. In light of this
favorable outcome, it seems rather disingenuous to now
assert that the classified summaries the government
provided were insufficient to adequately respond to the
allegations.

B.

Kiareldeen argues that the government denied him due
process because it relied on hearsay evidence without first
establishing that the original declarants were unavailable
for testimony. Putting aside what seems to be obvious--it is
difficult to claim a deprivation of due process of law when
one has been totally victorious in the various administrative
and judicial proceedings--the simple response to this

                                10
.

contention is that hearsay evidence is, in fact, admissible in
removal proceedings. Though the hearsay nature of
evidence certainly affects the weight it is accorded, it does
not prevent its admissibility in immigration cases. See
Cunanan v. INS, 856 F.2d 1373, 1374 (9th Cir. 1988);
Martin-Mendoza v. INS, 499 F.2d 918, 921 (9th Cir. 1974);
Matter of Grijalva, 19 I. & N. 713, 721-722 (BIA 1988). In
INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the Court
recognized that a hearsay document (INS Form I-213)
typically constitutes the exclusive basis for a decision made
in a removal proceeding.

C.

Although Kiareldeen now insists that his case did not
challenge the constitutionality of any statute, his habeas
petition made the following assertions: (1) his detainment
without bond, which was based on classified evidence, was
not authorized by the INA; (2) his detention violated the
Due Process Clause of the Constitution because it was
based on classified evidence, and thus "deprived him of
adequate notice and a meaningful opportunity to defend
himself "; and (3) his detention violated the Fifth
Amendment to the Constitution because the INS failed to
produce a witness. We agree with the government that in
this light, Kiareldeen's allegations that he did not"challenge
the facial constitutionality of any statute" are somewhat
specious. Appellee's Brief at 26.

Section 1229a(b)(4)(B) specifically denies an alien the
opportunity "to examine such national security information
as the Government may proffer in opposition to the alien's
admission to the United States or to an application by the
alien for discretionary relief . . ." Although bond and
deportation proceedings are adjudicated separately,
pursuant to 8 C.F.R. S 3.19(d), "[d]etention is necessarily a
part of [the] deportation procedure." Carlson v. Landon, 342
U.S. 524, 538 (1952). Because Kiareldeen's brief challenges
the general use of classified information, his assertions
necessarily challenge the constitutionality of the federal
statute. We conclude that the Justice Department is duty-
bound to defend what Congress has enacted, and was

                                11
.

therefore substantially justified in defending the
constitutionality of this statute.

IV.

We turn now to the government's argument that because
the "position of the United States was substantially
justified," the award of attorneys' fees should be reversed.
28 U.S.C. SS 2412(d)(1)(A), (d)(2)(D).

A.

The government argues that, as a general rule, defense of
a congressional statute "will usually be substantially
justified." League of Women Voters of California v. F.C.C.,
798 F.2d 1255, 1259 (9th Cir. 1986); see also Grace v.
Burger, 763 F.2d 457, 458 n.5 (D.C. Cir. 1985) (explaining
that Congress has a duty to self-police its measures for
compatibility with the Constitution, and thus situations in
which its defense of a statute is not substantially justified
should be exceptional).

This general rule is a product of two constitutional
norms: (1) the Executive Branch has an obligation to"take
Care that the Laws be faithfully executed," U.S. Const., art.
II, S 3, and (2) those laws enjoy a presumption of
constitutionality in court. See Rostker v. Goldberg, 453 U.S.
57, 64 (1981). In enacting the EAJA, it is implausible that
Congress intended to penalize the government for defending
the constitutionality of its own enactments through the
imposition of attorney fee liability.

The government argues that it has a duty to defend the
constitutionality of statutes, including amendments to the
INA, which Congress enacted in 1996. The INA governs the
procedure used by the INS in removal proceedings. It
declares that an alien's statutory right to examine the
evidence against him in a removal proceeding does not
entitle him "to examine such national security information
as the Government may proffer in opposition to the alien's
admission to the United States or to an application by the
alien for discretionary relief under [the Act]." 8 U.S.C.
S 1229a(b)(4)(B). This particular provision of the INA

                                12
.

codified two previous cases which upheld the use of
classified evidence to both oppose admissions and deny
discretionary relief applications. See Shaughnessy v. United
States ex rel. Mezei, 345 U.S. 206 (1953) (holding that the
Attorney General cannot be compelled to disclose evidence
used to exclude an alien); United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537 (1950) (upholding a regulation
providing for summary exclusion without a hearing for an
alien deemed to be a security risk).

Kiareldeen responds to the government's argument by
challenging the constitutionality of the use of classified
evidence generally. He emphasizes that "[n]o court that has
subjected the INS's use of secret evidence to the modern
due process analysis set forth in Mathews v. Eldridge, 424
U.S. 319 (1976), has found its constitutionality even to be
a close question." Appellee's Brief at 15. He relies on two
decisions for the proposition that the INS's use of classified
evidence is unconstitutional per se. See Rafeedie v. INS,
880 F.2d 506 (D.C. Cir. 1989); American-Arab Anti-
Discrimination Comm. v. Reno, 70 F.3d 1045 (9th Cir. 1995)
("AADC").1 He emphasizes also that in both of these cases
the INS abandoned appeals available to it, and was later
ordered to pay attorneys' fees under the EAJA.

Although this addresses the merits of the district court's
decision, it is simply beside the point. The propriety vel non
of the district court's treatment of this constitutional
argument is not before us, nor is it relevant to the appeal
at hand. Because the appeal from the habeas corpus
decision was withdrawn, that issue is still an open question
in this court. What is relevant, however, is whether the
government was substantially justified in defending the
constitutionality of the statute Kiareldeen attacks. We hold
that the government was obliged to do exactly that.

B.

The INS provided Kiareldeen with several unclassified
summaries of the classified evidence. The summary
_________________________________________________________________

1. Since vacated by the Court in Reno v. American-Arab Anti-
Discrimination Committee, 524 U.S. 471 (1999).

                                13
.

provided on July 29, 1998 stated that it was comprised of
information obtained by the FBI's Joint Terrorism Task
Force. It explained that this information concerning
terrorist investigations is "classified to protect against
disclosure that would permit a terrorist or suspected
terrorist organization, group, or individual to avoid
preventive or detection measures, or would reveal FBI or
other intelligence agency sources and methods by which
such information is obtained." App. Vol. II at 26.2 Indeed,
with each subsequent summary the government provided
Kiareldeen, it appears to have been making a concerted
_________________________________________________________________

2. The July 29, 1998 communication which the FBI provided Kiareldeen
stated the following:

The information in this communication was obtained from multiple
reliable sources who have provided reliable information in the past.

The Joint Terrorism Task Force (JTTF) is an FBI supervised squad with
detailed representation from numerous law enforcement agencies that
work jointly on terrorism matters in the Newark, New Jersey area.

This document contains information obtained by the Federal Bureau of
Investigation pursuant to its investigatory powers as governed by the
Attorney General Guidelines for FBI Foreign Intelligence Collection and
Foreign Counterintelligence Investigations, dated June 8, 1995. These
guidelines are established by the Attorney General to govern all
investigations of international terrorism conducted by the FBI pursuant
to Executive Order 12333.

The majority of information collected pursuant to these guidelines is
foreign intelligence information and is classified national security
information as defined by Executive Order 12958. Certain information
which would otherwise be unclassified when standing alone, such as the
fact that an organization has been designated by the United States
Secretary of State as a terrorist organization, may require classification
when combined with or associated with other unclassified or classified
information. Additionally, when presented in a context that would reveal
the FBI's investigative interest in certain individuals, organizations, or
countries, information which would normally be unclassified may be
properly classified.

Reliability of source information is of fundamental concern to the FBI
as it becomes the intelligence base of FBI investigations.
Characterization of FBI asset reporting is controlled by guidelines set
forth in the National Foreign Intelligence Program Manual.

                                14
.

effort to divulge as much information as possible to assist
_________________________________________________________________

"National security" as defined in Executive Order 12958, section 1.1(a),
refers to the national defense or foreign relations of the United States.
Investigation of international terrorism is necessary to the national
security. Counter terrorism investigations are primarily intended to
prevent harm to U.S. persons and U.S. interests, but also are designed
to prevent harm generally. In conducting counter terrorism
investigations, the FBI seeks information dealing with, but not limited to:
(1) individuals, groups, or organizations who are or may be engaged in
terrorist activities; (2) recruitment of targets by individuals or
organizations who are or may be engaged in terrorist activities; (3) the
organizational structure of terrorist and suspected terrorist organizations
or groups of individuals; (4) methods of procurement and training
employed by terrorist and suspected terrorist organizations or groups
and individuals; (5) operational and financial plans and techniques of
terrorist and suspected terrorist organizations or groups and individuals,
including fund-raising; (6) methods of communication by terrorist and
suspected terrorist organizations or groups and individuals; and (7)
information needed to protect the safety of any persons or organizations,
including those who are targets, victims or hostages of international
terrorist organizations. Collection of this and similar information is
essential to the FBI's ability to identify and counteract threats to the
national security. Non-public information collected pursuant to
international terrorism investigations is classified to protect against
disclosure that would permit a terrorist or suspected terrorist
organization, group, or individual to avoid preventive or detection
measures, or would reveal FBI or other intelligence agency sources and
methods by which such information is obtained.

HANY KIARELDEEN is a native of Israel who was born in Zaytoun, in
the Gaza Strip on January 30, 1968.

The JTTF of the FBI Newark Division developed information that Hany
Kiareldeen is a suspected member of a terrorist organization. Information
has disclosed Kiareldeen maintains relationships with other members
and/or suspected members of terrorist organizations dedicated to
committing acts of violence against the people of the United States or its
allies.

A source advised that approximately one week before the bombing of
the World Trade Center (WTC) in New York, Kiareldeen was present at a
meeting with several individuals who were talking about plans to bomb
the WTC. The meeting took place at Kiareldeen's residence in Nutley,
New Jersey. According to a source, Nidal Ayyad (Ayyad) was present at
this meeting (Ayyad is a convicted co-conspirator in the WTC bombing).
Ayyad did most of the talking about bombing the WTC as the others

                                15
.

him in his defense, without disclosing information in a way
that could potentially compromise national security.

Information contained in the unclassified summaries was
ultimately sufficient to assist Kiareldeen in mounting a
defense to the allegations. However, the same information
proved insufficient to both the immigration judge and the
district court. Although accepting the JTTF summaries as
"expert evidence," the immigration judge determined that
the INS's lack of testimony, both public and in camera, was
insufficient to counter Kiareldeen's evidence. App. Vol. II at
43. The district court, however, attacked the credibility of
the summaries directly, describing them as "lacking in
either detail or attribution to reliable sources." Kiareldeen v.
Reno, 71 F. Supp. 2d at 414. That the FBI would be
unwilling to compromise national security by revealing its
undercover sources, is both understandable and
comforting. That a court would then choose to criticize the
FBI for being unwilling to risk undermining its covert
operations against terrorists is somewhat unnerving.

The district court also criticized the government for its
apparent unwillingness to also bring criminal charges
against Kiareldeen.3 It stated that "even the government
_________________________________________________________________

listened. Ayyad stated that he suggested to Sheikh Omar Abdel Rahman
(Rahman) that a suicide bombing should be attempted on the WTC.
According to Ayyad, Rahman had another idea about bombing the WTC
and stated that a suicide bombing was not appropriate.

Recently, a source advised [sic] Kiareldeen expressed a desire to
murder Attorney general Janet Reno for her role in the conviction of
those responsible for the bombing of the World Trade Center. The
information developed indicates that Kiareldeen poses a credible threat
[sic] Attorney General Reno and potentially others within the United
States. A source advised [sic] Kiareldeen stated in the present of others
that they, including himself, must kill Janet Reno. Furthermore,
Kiareldeen stated that an additional person would assist in the murder
of the Attorney General. The FBI took additional steps to test the veracity
of the source reporting the threat against the Attorney general.

App.Vol. II at 25-27.

3. The district court makes the following categorical statements: "[T]he
government's reliance on secret evidence violates the due process

                                16
.

does not find its own allegations sufficiently serious to
commence criminal proceedings." Id.

This statement illustrates both a simplistic and entirely
uninformed view of the processes by which the Justice
Department investigates and deals with suspected terrorists
within our borders. It completely disregards the often
complex determinations involved in releasing confidential
counter-terrorism intelligence into the public arena through
its introduction into both administrative hearings and court
proceedings. Such a criticism implies that the government
may only utilize information against an individual in a civil
context, such as in deportation procedures, if it also
_________________________________________________________________

protection that the Constitution directs must be extended to all persons
within the United States, citizens and resident aliens alike." Kiareldeen,
71 F. Supp. 2d. at 414; and the Due Process Clause requires searching
scrutiny of "government actions taken against resident aliens such as
Kiareldeen." Id. at 409. Through the period of his detention, Kiareldeen
never possessed resident alien status. Rather, he was a deportable alien
who was in this country illegally, having overstayed his student visa.
This is a distinction with a difference.

       "For reasons long recognized as valid, the responsibility for
       regulating the relationship between the United States and our alien
       visitors has been committed to the political branches of the Federal
       Government." Mathews v. Diaz, 426 U.S. 67, 81 (1976). " `[O]ver no
       conceivable subject is the legislative power of Congress more
       complete.' " Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Oceanic
       Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). Thus,
       "in the exercise of its broad power over immigration and
       naturalization, `Congress regularly makes rules that would be
       unacceptable if applied to citizens.' " 430 U.S., at 792 (quoting
       Mathews v. Diaz, supra, at 79-80). Respondents do not dispute that
       Congress has the authority to detain aliens suspected of entering
       the country illegally pending their deportation hearings, see Carlson
       v. Landon, 342 U.S. 524, 538 (1952); Wong Wing v. United States,
       163 U.S., at 235. And in enacting the precursor to 8 U.S.C.
       S1252(a), Congress eliminated any presumption of release pending
       deportation, committing that determination to the discretion of the
       Attorney General. See Carlson v. Landon, supra, at 538-540. Of
       course, the INS regulation must still meet the (unexacting) standard
       of rationally advancing some legitimate governmental purpose . . ."

Reno v. Flores, 507 U.S. 292, 305-306 (1993).

                                17
.

intends to commence criminal proceedings against that
same individual. Such a fettering of the Executive Branch
has no support in either case law or statute.

In determining when the government's position in
immigration matters is substantially justified, especially
when dealing with potential terrorists, it is improper to
evaluate its position by using traditional standards of proof
used in both administrative and court proceedings."The
function of a standard of proof, as that concept is embodied
in the Due Process Clause and in the realm of fact finding,
is to `instruct the fact finder concerning the degree of
confidence our society thinks he should have in the
correctness of the factual conclusions for a particular type
of adjudication.' " Addington v. Texas, 441 U.S. 418, 423
(1979) (quoting In re Winship, 397 U.S. 358, 370 (1970)).

Thus, at one end of the spectrum is the familiar burden
of proof in most civil proceedings: preponderance of the
evidence. At the other end is the standard of proof designed
to exclude, as nearly as possible, the likelihood of an
erroneous judgment in a criminal case: proof beyond a
reasonable doubt. The intermediate standard, generally
utilized in fraud or quasi-criminal matters, requires a
higher standard of proof than mere preponderance of the
evidence. This is the standard that the government must
utilize in removal proceedings. See Woodby v. INS, 385 U.S.
276, 286 (1966) ("We hold that no deportation order may be
entered unless it is found by clear, unequivocal, and
convincing evidence that the facts alleged as grounds of
deportation are true"). See also Ribeiro v. INS, 531 F.2d 179
(3d Cir. 1976). In ascending order, quantifying the amount
of evidence required in various proceedings, these burdens
of proof may also be expressed as degrees of belief. As one
commentator has suggested, "the only sound and
defensible hypotheses are that the trier, or triers, of facts
can find what (a) probably has happened, or (b) what highly
probably has happened, or (c) what almost certainly has
happened."4
_________________________________________________________________

4. J.P. McBaine, Burden of Proof: Degrees of Belief, 32 Cal. L. Rev. 242,
245-247 (1944).

                                18
.

We are impelled to emphasize, yet again, that in
considering the question of attorneys' fees, we do not
determine whether the government was substantially
justified based upon the result reached in the district court
proceeding, or upon an inquiry into whether the
government met its stated burden of proof. Substantial
justification is measured on the basis of whether the
government was justified in initiating the proceeding and
going forward with the hearing before the immigration
judge. To be substantially justified, the government's
position need not be "correct", or even "justified to a high
degree." Pierce v. Underwood, 487 U.S. 552, 565, 566 n.2
(1988). Rather, the government must simply have a
"reasonable basis in both law and fact" or be"justified in
substance or in the main -- that is, justified to a degree
that could satisfy a reasonable person." Id.  (internal
quotation marks omitted).5 Whether the government was
substantially justified, therefore, does not present the same
question as that presented by the underlying merits of the
case. The relevant legal question is "not what the law now
is, but what the Government was substantially justified in
believing it to have been." Id. at 561.

A court must not "assume that the government's position
was not substantially justified simply because the
government lost on the merits." Morgan v. Perry, 142 F.3d
670, 685 (3d Cir. 1998) (citation omitted); accord Pierce,
487 U.S. at 569 (reminding that the government "could
take a position that is substantially justified, yet lose"); see
also S. Rep. No. 96-253, at 7 (1979); H.R. Rep. No. 96-
1418, at 11 (1979), reprinted in 1980 U.S.C.C.A.N. 4984,
4990 (stating that the EAJA "should not be read to raise a
presumption that the Government position was not
substantially justified, simply because it lost the case. Nor,
in fact, does the standard require the Government to
establish that its decision to litigate was based on a
_________________________________________________________________

5. This court usually expresses this formulation in this manner: To
establish reasonable justification, the government must show "(1) a
reasonable basis in truth for the facts alleged; (2) a reasonable basis in
law for the theory it propounded; and (3) a reasonable connection
between the facts alleged and the legal theory advanced." See, e.g.,
Morgan v. Perry, 142 F.3d 670, 684 (3d Cir. 1998).

                                19
.

substantial probability of prevailing"); Clarke v. INS, 904
F.2d. 172, 175 (3d Cir. 1990) ("EAJA is a waiver of
sovereign immunity, however, so it must be construed
strictly in favor of the United States").

To hold otherwise would force lower level supervisors in
anti-terrorist investigations to utilize a cost/benefit analysis
in deciding which cases to pursue. Rather than simply
pursuing individuals and groups against which the
government had the strongest case, they might be reluctant
to pursue any case in which a sizeable fiscal loss could
result. This would act as a disincentive to faithfully execute
all the laws, and could result in the government pursuing
only those individuals and groups against whom it
appeared to have an almost guaranteed chance of success.
Looming large would always be the possibility that, in the
event of a mishap by the government's attorney, the
government could not only lose its case, it could also lose
substantial taxpayer funds as well. Finally, the floodgates of
EAJA cases would be opened, subjecting the government to
a case similar to this one every time it was unsuccessful.
This was certainly not Congress's intent in passing the
EAJA, and thus the government's loss does not, ipso facto,
manifest a lack of substantial justification.

On the basis of the declassified summary the government
furnished to Kiareldeen, we are satisfied that there was
ample substantial justification for the position adopted by
the government in the habeas corpus proceeding. This is
especially true considering the FBI's statement that:
"Investigation of international terrorism is necessary to the
national security. Counter terrorism investigations are
primarily intended to prevent harm to U.S. persons and
U.S. interests, but also are designed to prevent harm
generally." App. Vol. II at 25-26.

Certainly, in investigating suspected terrorists in
immigration matters, the government should not be held to
a higher standard than required by Rule Three and Rule
Four of the Federal Rules of Criminal Procedure. These
rules state that an arrest warrant shall be issued only upon
a written and sworn complaint (1) setting forth"the
essential facts constituting the offense charged," and (2)
showing "that there is probable cause to believe that [such]

                                20
.

an offense has been committed and that the defendant has
committed it." Fed. R. Crim. P. 3, 4. Additionally, the
Fourth Amendment states that ". . . no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized." U.S.
Const. amend. IV. This amendment applies to arrest
warrants as well as search warrants. Giordenello v. United
States, 357 U.S. 480, 485-486 (1958).

C.

Moreover, we should be mindful of the public policy
statements reflected by Congress in the 1996 amendment
to the INA. Section 240 of the INA states that an alien is
not entitled "to examine such national security information
as the Government may proffer in opposition to the alien's
admission to the United States or to an application by the
alien for discretionary relief under [the Act]." 8 U.S.C.
S 1229a(b)(4)(B). Additionally, on October 26, 2001,
President Bush signed the USA Patriot Act of 2001, which
was approved by Congress just days before its signing. This
Act expanded the investigative powers of our law
enforcement agencies. It states that it is designed"to deter
and punish terroristic acts in the United States and around
the world, to enhance law enforcement investigatory tools,
and other purposes."6

D.

We are not inclined to impede investigators in their
efforts to cast out, root and branch, all vestiges of terrorism
both in our homeland and in far off lands. As the Court has
stated:
_________________________________________________________________

6. It bears note that H.R. 1266, entitled the"Secret Evidence Repeal Act
of 2001," was introduced on March 28, 2001, by Representative David
Bonier (D-MI) and was later referred to the Subcommittee on
Immigration and Claims of the House Judiciary Committee. This Act,
whose objective is to limit the government's use of classified evidence in
cases such as Kiareldeen's, nevertheless would still permit such evidence
to be used, inter alia, for "terroristic activity deportation." See 8 U.S.C.
S1229a(b)(4)(B). See H.R. 1266, 107th Cong. (2001).

                                21
.

       Few interests can be more compelling than a nation's
       need to ensure its own security. It is well to remember
       that freedom as we know it has been suppressed in
       many countries. Unless a society has the capability
       and will to defend itself from the aggressions of others,
       constitutional protections of any sort have little
       meaning.

Wayte v. United States, 470 U.S. 598, 611-612 (1985). The
district court, in its fact finding process, understandably
felt shackled by the government's unwillingness to provide
Kiareldeen the names and addresses of its counter-
terrorism personnel, both in uniform and in civilian clothes.
Nonetheless, the public fisc should not lightly be exposed to
financial penalties when the war on terrorism is transferred
from the domestic battlefield that our country has become,
to the vacuum-sealed environment of a federal courtroom,
with such civilized accouterments as burdens of proof and
axioms of evidence.

We conclude also that the government clearly met the
test of being "substantially justified" by drawing an analogy
to the concept of probable cause. Inside the courtroom, the
profound bundle of constitutional rights remains to protect
the petitioners. And in immigration matters, the
government may not always be able to prove its case by
clear, convincing and unequivocal evidence, but this should
never deter its assiduous search to weed out from our
midst those who would destroy us. The Court has
instructed that

       probable cause requires only a probability or
       substantial chance of criminal activity, not an actual
       showing of such activity. . . In making a determination
       of probable cause the relevant inquiry is not whether
       particular conduct is "innocent" or "guilty," but the
       degree of suspicion that attaches to particular types of
       noncriminal acts.

Illinois v. Gates, 462 U.S. 213, 243-244 n.13 (1983).

The eerie, if not prescient, information that the Joint
Terrorism Task Force assembled from its sources, must be
evaluated in light of "the degree of suspicion that attaches
to particular types of [activities]." Id. In light of the

                                22
.

pummeling that the FBI received following the September
11th tragedy for not possessing sufficient intelligence
materials, consider the following information revealed by its
sources in 1998, dealing with a meeting at which
Kiareldeen was allegedly present:

       A source advised that approximately one week before
       the bombing of the World Trade Center (WTC) in New
       York, Kiareldeen was present at a meeting with several
       individuals who were talking about plans to bomb the
       WTC. The meeting took place at Kiareldeen's residence
       in Nutley, New Jersey. According to a source, Nidal
       Ayyad (Ayyad) was present at this meeting (Ayyad is a
       convicted co-conspirator in the WTC bombing). Ayyad
       did most of the talking about bombing the WTC as the
       others listened. Ayyad stated that he suggested to
       Sheikh Omsar Abdel Rahman (Rahman) that a suicide
       bombing should be attempted on the WTC. According
       to Ayyad, Rahman had another idea about bombing the
       WTC and stated that a suicide bombing was not
       appropriate.

App. Vol. II at 26.

On July 29, 1998, the Joint Terrorism Task Force had
information that Ayyad, the convicted terrorist in the 1993
bombing of the World Trade Center, suggested a suicide
bombing of the Center. This understandably created
apprehension on the part of the Joint Terrorism Task
Force, alerting the government to take all necessary action
to investigate all leads and assure the defense of our
nation. On September 11, 2001, slightly over two years
after the government supplied this information to both the
INS and the district court in this case, the convicted
terrorist's suggestion became a reality. It is impossible to
conjure up a "particular type[ ]" of activity, as mentioned in
Gates, that would be more nefarious than that which
happened on Black Tuesday. See Gates, 462 U.S. at 243
n.13. Such activity surely constitutes a quantum of
suspicion justifying probable cause, as well as substantial
justification for the government's conduct in this case.

For all these reasons, therefore, we find "that the position
of the United States was substantially justified or that

                                23
.

special circumstances make an award unjust," 28 U.S.C.
S 2412(d)(1)(A), and therefore the district court erred in
requiring it to pay Kiareldeen attorneys' fees.

* * * *

We have considered all contentions raised by the parties
and conclude that no further discussion is necessary.

The judgment of the district court awarding attorneys'
fees will be reversed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                24



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