Thursday, February 17, 2011
Court Upholds Order Ousting Hamas Sympathizer From U.S.
By KENNETH OFGANG, Staff Writer
A Palestinian immigrant who had “jihadist” materials on his laptop computer, and whose family had ties to Hamas, can be returned by the government to the Palestinian territories, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Denying review of a ruling by the Board of Immigration Appeals, the panel said the government had shown Tareq I.J. Abufayad to be removable because he was likely to engage in terrorist activity and had given material support to a terrorist organization.
The court also said Abufayad failed to establish a probability that he would be tortured by either the Israeli government or the Palestinian Authority, as he claimed in seeking relief under the Convention Against Torture.
Evidence at his hearing before the immigration judge showed that Abufayad was detained at San Francisco International Airport in February 2007. After attending college in Egypt, he had flown to the United States on an immigrant visa obtained through the sponsorship of his father, one of several family members who are U.S. citizens or legal residents.
Abufayad was questioned by federal agents, according to the testimony, after an agent approached him on a random basis and became concerned by the immigrant’s “confrontational” attitude. After finding materials on his computer they regarded as “anti-American,” the agents took the computer to Immigration and Customs Enforcement headquarters for a thorough examination, and questioned Abufayad over several days.
Hard Drive Data
The leader of the forensic team that examined the computer hard drive reported that “[w]hile the majority of the data stored on this hard drive is not considered jihadist, the hard drive nonetheless also contains a significant amount of jihadist material,”including “jihadist videos, audio clips, songs, pictures, rhetoric, training manuals, and justifications of violence.”
She said the material was “consistent with the jihadist material found on jihadist websites and shared within the global jihadist community,” and the computer also contained hacking programs and stolen credit card numbers.
Agents also found information on the defunct Islamic Association for Palestine, a designated terrorist organization, in Abufayad’s luggage.
He admitted that while growing up in Gaza, he attended a mosque whose imam, a childhood friend of his father, later became a fundamentalist member of the Hamas government in Gaza.
He also acknowledged that two of his cousins belonged to Hamas, including one who had been involved in a suicide attack in 2001’s Second Intifada, and that he had lived with Hamas members at Bir Zeit University in the West Bank, but said he himself had declined to join Hamas and was not involved in its activities.
A government expert, FBI Special Agent Robert Miranda, testified that Abufayad’s college education, including a background in computer science; the fact that he grew up in a town where Hamas is well-regarded; and his potential ability to obtain a green card made him a desirable recruitment target for Hamas. The expert said he had spoken with a Hamas expert at the Israeli Security Agency, who said it was unlikely that Hamas members would have shared a residence with an outsider who “doesn’t share their opinions.”
Captured Hamas members, the Israeli said, often claim that the group was merely trying to recruit them.
The IJ held that it was a “close” case, but that the government had met the low burden of showing that it had “reasonable ground to believe” Abufayad was likely to engage in terrorist activity if admitted to the United States.
The IJ went on, however, to rule that removal should be deferred based on the likelihood that Abufayad, having been labeled as a Hamas supporter and likely terrorist by U.S. authorities, would be tortured if returned.
Both Abufayad and the government appealed. The BIA upheld the IJ’s ruling that Abufayad was removable, and overturned the grant of CAT relief as speculative and not based on the evidence.
There was no evidence, the BIA explained, that the government, in consulting with Israel, had identified Abufayad by name. Nor was there any showing that the PA would identify Abufayad as a Hamas sympathizer, the board said.
Judge Ronald S. Gould, writing yesterday for the Ninth Circuit, said the BIA ruling was supported by substantial evidence.
The judge rejected Abufayad’s claim that Miranda’s testimony was based on “speculation” and “twisted logic.” The agent’s extensive counterterrorism background, combined with his detailed review of the evidence, qualified him to render his opinion, Gould said, and permitted the BIA to rely upon it.
The court’s review of the BIA’s determination of the facts, Gould noted, is highly deferential. And unlike asylum cases, the judge pointed out, there is no requirement in an admissibility case that the alien’s testimony be treated as credible in the absence of an express determination to the contrary.
As for the torture issue, Gould agreed with the BIA that the IJ improperly relied on speculation.
The evidence, the judge said, shows that Israel does not torture, although it uses “moderate physical pressure” against those suspected of having knowledge of imminent terrorist attacks. “There is no evidence in the record suggesting that Abufayad would be thought to fit in this category, and the record does not indicate that Hamas sympathizers face a risk of cruel and inhuman treatment,” he wrote.
Nor, Gould said, was there evidence that the PA, although it may torture active members of Hamas, would torture Abufayad for merely being sympathetic to the group, even assuming the PA would be told why he was removed from the United States, which is not necessarily part of the removal process.
The case is Abufayad v. Holder, 09-70136.
Copyright 2011, Metropolitan News Company