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Failed Terrorism Charges Reheard in Immigration Court

Image has not been found. URL: /wp-content/uploads/2009/04/holder-obama.jpgAttorney General Eric Holder and President Barack Obama (AP Photo)

In August 2007, Youssef Megahed, an Egyptian-born 23-year-old engineering student from Tampa, Florida was pulled over by a police officer while driving through South Carolina with a friend to a North Carolina beach for vacation, they said. But the police found low-level explosives in the trunk and arrested the two men. Megahed’s friend, fellow University of South Florida classmate Ahmed Mohammed, said he’d purchased the explosives to make fireworks, but the police, and later federal prosecutors, were not convinced.

Both men were charged with illegally transporting explosives and held in federal prison.

Law.jpg
Law.jpg

Illustration by: Matt Mahurin

Eventually Mohammed, who’s originally from Kuwait, admitted to creating a You Tube video showing how to make a remote control toy vehicle explode, and pleaded guilty to terrorism charges. He’s now serving a sentence of up to 15 years in prison.

But Megahed said he had nothing to do with the video, the explosives or terrorism. He’d met Mohammed at school and known him less than a year. A legal U.S. resident who’d immigrated to Florida more than ten years earlier with his family, Megahed insisted on exercising his right to a trial.

On April 3, after four days of deliberation, the jury in Megahed’s case delivered their verdict: not guilty.

That wasn’t the end of Megahed’s ordeal, however. Just three days later, he was surrounded by more than a dozen Immigration and Customs Enforcement agents and re-arrested while shopping with his father at a local Wal-Mart. This time, he was charged under the immigration laws as someone who the government “knows, or has reason to believe, is engaged in or is likely to engage” in terrorist activity. Although a legal U.S. resident just acquitted of all criminal charges based on the same facts, he now faces deportation to Egypt.

President Obama’s speech on Thursday at Cairo University, seeking “a new beginning between the United States and Muslims around the world” was, by most accounts, a huge success. Yet the story of Youssef Megahed, and other Muslim immigrants like him in the United States, could present an embarrassing obstacle to the administration’s attempts to smooth U.S. relations with the Muslim world. Muslims in Florida are already outraged, and the Megahed story has reportedly become a cause célèbre in Egypt as well. After all, the case raises a disturbing question: why does U.S. immigration law allow a man acquitted of criminal charges that he supported terrorism to be tried again on essentially the same claims in immigration court?

Immigration and Customs Enforcement spokesman Ivan Ortiz-Delgado said there’s no contradiction because Megahed was arrested for “civil violations of the Immigration and Nationality Act” and “is subject to potential loss of his lawful permanent resident status and deportation if he is found to have violated certain immigration laws. The charged immigration violations differ significantly from those charged in his criminal case, and he will have the opportunity to present the facts of his case before an immigration judge.”

Still, it’s only because Megahed is suspected of a tangential connection to terrorism that he’s being charged under the immigration laws at all. The situation facing Megahed and thousands of other Muslims deported after the terrorist attacks on September 11, 2001 is part of the government’s aggressive strategy to use the immigration laws to remove anyone suspected of terrorism, even if they could not be convicted on any charges in federal court.

But Megahed’s lawyer says that although the charges are technically different because they’re filed under the Immigration and Nationality Act, the facts alleged to support them are the same.

According to the charging document, Megahed is charged with being an Egyptian national who was driving a car that had explosives in it and a laptop computer which “contained files and images supporting Islamic extremism and Jihad as well as files related to bomb-making and explosives.” Megahed was not accused in the criminal case of any connection to the computer or the video, which was made by Mohammed.

Another immigration document filed by the Department of Homeland Security adds an additional charge that “the family desktop computer” at Megahed’s father’s house in Tampa contained “numerous videos, documents and an Internet search history that supports Islamic extremism, jihad against the United States, bomb making, explosive and numerous other military weapons references, all accessed over a period from early 2006 to August 3, 2007.”

The same evidence was introduced in Megahed’s criminal trial, says his lawyer, Charles Kuck, but there was no evidence that Megahed had used the computer, and many other people had access to it.

Ultimately, the evidence of the explosives in the car and the computer in his family’s home did not convince the jury that Megahed was guilty of supporting terrorism.

“Are you ready to convict based on someone’s Internet history? I’m not,” the foreman of the jury that acquitted Megahed told The Wall Street Journal. In a highly unusual move, he and three other jurors issued a statement protesting the second arrest by immigration authorities after Megahed’s acquittal at trial.

The immigration arrest “may be ‘legal,’ but that doesn’t make it right,” says the statement, published in the St. Petersburg Times.

The burden of proof in immigration proceedings is lower than in criminal cases, where the government must prove the charges “beyond a reasonable doubt.”

In immigration cases, “the government has to prove by clear and convincing evidence that there is reasonable grounds to believe that this person has engaged or will engage in terrorist activity,” explained Kuck, adding: “it’s hard to even know what that means.”

Although the evidence produced in immigration proceedings is not publicly available, the government is allowed under the law to use exactly the same evidence it used in federal court that didn’t convince the jury of Megahed’s guilt.

“The facts are all the same,” said Kuck, who’s seen the evidence filed with the court. “Every fact they have given the court so far is identical. Do you think they wouldn’t have given the trial court evidence they have to support their claims that he’s supporting terrorism?”

Megahed’s immigration trial is set for August 17, but he’s been in an immigration prison since he was arrested by ICE on April 6. Under DHS rules, a suspect who is charged with being deportable on terrorism grounds must be detained until his trial.

Although Megahed’s case may be the one that comes to President Obama’s attention on his visit to Egypt, he’s hardly the only Muslim immigrant facing this seemingly surreal situation.

In mid-May, after two earlier trials ended in hung juries, the Justice Department won five convictions in a case against six men in Miami (known as the “Liberty City Six”) accused of plotting to blow up the Sears Tower in Chicago. The man acquitted, an immigrant from Haiti – Lyglenson Lemorin – was then re-charged based on the same evidence under the immigration law.

“It’s not double jeopardy because it’s a civil proceeding not a criminal proceeding,” explained Kuck, who also represents Lemorin in his immigration case.

In the Lemorin case the government was trying to prove three things, said Kuck. That Lemorin was a terrorist, that he affiliated with terrorists, and that he gave material support to terrorists. The immigration judge said he was not a terrorist, said Kuck, but said he “affiliated with terrorists” because he hung around with these guys who were convicted,” and he “gave material support them by working at the drywall company was owned by one of them,” Kuck said.

The judge found Lemorin removable on those two grounds, but his lawyer claimed that he fears persecution if he is deported to Haiti, because the judge had just essentially declared him a terrorist, and “they do bad things to terrorists there,” Kuck said. Kuck said he would appeal any adverse ruling. In the meantime, Lemorin remains in federal detention.

In another case, Sami Omar Al-Hussayen, a Saudi graduate student in Idaho, was prosecuted in 2004 on terrorism charges for his volunteer work on a Web site for a Muslim charity. Prosecutors said the web site contained secret pro-terrorism messages.

Al-Hussayen was charged under a clause that expanded the definition of “material support” to include those who provide “expert advice or assistance” to terrorists’ cause.

The jury didn’t buy it: “There was not a word spoken that indicated he supported terrorism,” juror John Steger, a retired federal employee told the Seattle Times after the trial. “It was a real stretch.”

He was also charged separately for immigration violations. “They were similar facts, but technically different charges,” David Nevin, his lawyer, explained. Prosecutors charged that al-Hussayen had earned about $300 over his five years of volunteering for the charity, in violation of his student visa, and that he’d failed to list the Islamic Assembly of North America as an organization he belonged to, although all men entering the country after 9-11 were required to list the organizations to which they belong.

At trial, Al-Hussayen was acquitted of the terrorism charges, but jurors deadlocked on the immigration violations.

By this time, Al Hussayen had been in jail for 15 months. To avoid waiting for and enduring another trial, he agreed to plead guilty to immigration violations and was deported to Saudi Arabia, where he was born.

Charles Kuck said he knows of several more such cases pending. Even though as a legal matter the government is allowed to charge an acquitted defendant again in immigration proceedings, as a policy matter some say it’s neither fair nor wise. The American Civil Liberties Union and several human rights organizations have urged the Obama administration to drop the immigration charges.

In a letter to Attorney General Eric Holder, Ramzy Kilic, Executive Director for the Council on American Islamic Relations in Tampa; Melva Underbakke of Friends of Human Rights, and Chuck Leigh, president of the Florida Council of Churches, wrote:

“The American Muslim community is convinced that Megahed’s arrest, just after he was exonerated in Federal Court, sends the message that the U.S. Department of Justice (DOJ) and the U.S. Department of Homeland Security (DHS) cannot afford the American Muslim community with the same freedoms and justice it does to other Americans. American Muslims perceive this as an obvious pursuit of an individual, based upon his religious affiliation, ethnic and/or national origins. The DOJ and DHS must remain consistent in treating individuals fairly…You must intervene on Megahed’s behalf personally, in order to end the continued alienation of our community as well as the American Muslim community.”

With President Obama now facing Muslims in Egypt precisely to assure them that the United States treats Muslims fairly, and that both share the “principles of justice and progress” and “the dignity of all human beings,” as he put it today, cases such as Youssef Megahed’s pose a serious test.

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