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. e du/thir dc ir c uit_2001/281Filed 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, Acti ng Commissioner, Immigration and Naturalization Servic e; 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

2DANIEL 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 Han y Mahmoud Kiareldeen, an ethnic Palestinian and Israe li citizen, from the United States, the Immigration an d Naturalization Service ("INS") relied on classified evidence obtained by the FBI's Joint Terrorism Task Force. T his evidence suggested that Appellee was a member of a terrorist organization, was involved in the 1993 bo mbing 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 wr it of habeas corpus, reasoning that the INS had not suffi ciently 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 de tention, and litigation in support of the detention, were no t

3substantially justified. The Attorney General and t he 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 posi tion of the United States was substantially justified or that s pecial 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 estab lish 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 argumen t advanced by the government is that its position dur ing 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 positio n 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' fe es 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. 55 2, 558- 563 (1988)); cert. denied, 525 U.S. 1070 (1999). Th is court

will not interfere with a district court's exercise of discretion

"unless there is a definite and firm conviction tha t the court . . . committed a clear error of judgment in the co nclusion it reached upon a weighing of the relevant factors. " Morgan,

142 F.3d at 683.

However, we may find an abuse of discretion "when n o reasonable person would adopt the district court's view" or "when the district court's decision rests upon a cl early erroneous finding of fact, an errant conclusion of law or an

4improper application of law to fact." Id. at 682-68 3. This

court will also "review an award [of attorneys' fee s] de novo insofar as it rests on conclusions of law, such as an interpretation of the statutory terms that define e ligibility for an award." Nat'l Ass'n of Mfrs. v. Dep't of Lab or, 159 F.3d 597, 599 (D.C. Cir. 1998) (citing Love v. Reil ly, 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 dis cretion standard is applied in an EAJA case, the district c ourt's conclusions of law are still reviewed de novo ).

I.

Kiareldeen entered the United States on a student v isa on April 27, 1990. He then violated the specific terms of his visa by remaining in the United States after comple ting his studies in 1994. On March 26, 1998, the INS served him with a Notice to Appear charging that he was remova ble under S 237(a)(1)(C)(i) of the Immigration and Nati onality Act ("INA") for failing to comply with the terms of his visa. The service ordered him held without bond pending t he 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 h is visa, and then sought an adjustment of status based upon INA S 245 (marriage to a United States citizen). The IN S resisted the adjustment of status with evidence that Kiareld een had filed a false birth certificate with the immigratio n judge. The INS also submitted classified evidence to the immig ration judge, in camera and ex parte, alleging that (1) Ki areldeen was a member of a foreign terrorist organization, ( 2) he was involved in a meeting planning the 1993 attack on t he World Trade Center one week prior to the actual att ack, at which a suicide bombing was discussed, and (3) he l ater threatened to kill Attorney General Janet Reno for her role in convicting those responsible for the 1993 bombin g of the

World Trade Center.

The INS provided Kiareldeen with several unclassifi ed

summaries of the classified evidence of the Federal Bureau

5of Investigation ("FBI"). The summary dated July 29 , 1998,

stated that the information was obtained by the Joi nt Terrorism Task Force, an FBI-supervised squad with detailed representation from numerous law enforceme nt agencies that work together on terrorism matters in the Newark, New Jersey area. The summary stated also th at the information gathered was foreign intelligence information based on multiple sources, which the FB I considered to be reliable, and that the FBI had tak en "additional steps to test the veracity of the sourc e reporting the threat against the Attorney General." App. Vol. II at 25- 28. It emphasized that the reliability of the sourc es "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 Prog ram Manual." Id. at 25. Finally, it explained that this type of information regarding terrorist investigations is"c lassified to protect against disclosure that would permit a t errorist or suspected terrorist organization, group, or indi vidual to avoid preventive or detection measures, or would re veal FBI or other intelligence agency sources and methods by which

such information is obtained." Id. at 26.

Kiareldeen responded to the accusations with charac ter witness testimony from family and friends, as well as other evidence seeking to rebut the claims in the unclass ified summaries. On April 2, 1999, the immigration judge granted his application for adjustment of status, a warded 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 Boa rd

denied the motion. It stated that Kiareldeen's "use of a fraudulent birth certificate in conjunction with hi s application for adjustment of status . . . [is a] s erious 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] suffic ient reason[s] to believe that the respondent would be a threat to the national security . . . such that we find th e

6respondent ineligible for bond." Id. Kiareldeen als o filed a

petition for a writ of habeas corpus in the distric t court challenging the government's use of classified evid ence 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 grantin g the adjustment of status. Because of this, the prior Bo ard panel lifted the stay on the release order and bond appeal. On October 20, 1999, the district court issued an O pinion 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 proces s rights were violated by the government's reliance on class ified information, which denied him both meaningful notic e and an opportunity to confront the evidence. Later that day, the Board panel considering his bond ordered his releas e.

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 b y a motions panel. On October 25, 1999, the INS release d Kiareldeen, withdrew its stay motion and decided no t 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 d istrict 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 241 2. 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 fe es, arguing that the district court abused its discreti on in determining that there was no substantial justifica tion 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

7the merits of the decisions in the administrative

proceedings or in the district court. It is necessa ry to make this strong statement because the tenor of the brie fs submitted by the parties seems to concentrate on th e merits of the decision granting the writ of habeas corpus, instead of on the much more limited issue of the at torneys' fee award. Our responsibility, therefore, is extrem ely

limited. We must review the record and determine wh ether, 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 i n seeking Kiareldeen's removal from the United States because of the evidence presented by the FBI's Join t Terrorism Task Force. This evidence alleged that Ki areldeen was a member of a foreign terrorist organization, t hat 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 Gener al Janet Reno for her role in convicting those responsible f or the bombing. In prosecuting its case, the government re lied on the alleged statements of Nidal Ayyad and Sheikh Om ar Abdel Rahman in order to implicate Kiareldeen in th e 1993 bombing.

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

The alien shall have a reasonable opportunit y to examine the evidence against the alien, to p resent evidence on the alien's own behalf, and to c ross- examine witnesses presented by the Governmen t but these rights shall not entitle the alien to examine such

8national security information as the Governm ent may

proffer in opposition to the alien's admissi on to the United States or to an application by the al ien 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 evidenc e. He argues that he was deprived of the "most basic elem ents of due process--meaningful notice of the evidence used against him and an opportunity to confront it." App ellee's Brief at 18-19. He also argues that "[t]he lack of substantial justification for the government's pre-litigation c onduct is further buttressed by the exclusively hearsay chara cter of the evidence it relied upon to detain Kiareldeen." Id. at 24. Kiareldeen further argues that he was not challengi ng 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, whate ver force they may have had in influencing the ultimate administrative decisions and the district court jud gment, are insufficient to demonstrate that the government 's position either before or during litigation proceed ings were not substantially justified.

III.

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

A.

Kiareldeen vigorously argues that his detention, ba sed primarily upon classified evidence, denied him the due process rights of meaningful notice and opportunity to respond. However, the favorable outcomes in both th e administrative and district court proceedings sever ely dilute the efficacy of this contention. Kiareldeen was pro vided with

9several unclassified summaries of the information t he INS

had submitted to the immigration judge. Though thes e summaries were not highly fact-specific, ensuring t hat neither the FBI's sources nor national security wer e 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 consider able amount of live testimony and documentary evidence t o 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-wif e, 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 o f domestic violence, child abuse and terrorism agains t him. Because she now refused to answer Kiareldeen's ques tions 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 pro vided 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 governm ent's case, winning his case at both the administrative a nd

district court levels. He was released from detenti on, 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 du e process because it relied on hearsay evidence witho ut first establishing that the original declarants were unav ailable for testimony. Putting aside what seems to be obvio us--it is difficult to claim a deprivation of due process of law when one has been totally victorious in the various admi nistrative and judicial proceedings--the simple response to th is

10contention is that hearsay evidence is, in fact, ad missible in

removal proceedings. Though the hearsay nature of evidence certainly affects the weight it is accorde d, 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 19 88). In INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the Cou rt recognized that a hearsay document (INS Form I-213) typically constitutes the exclusive basis for a dec ision made in a removal proceeding.

C.

Although Kiareldeen now insists that his case did n ot challenge the constitutionality of any statute, his habeas petition made the following assertions: (1) his det ainment without bond, which was based on classified evidenc e, was not authorized by the INA; (2) his detention violat ed the

Due Process Clause of the Constitution because it w as based on classified evidence, and thus "deprived hi m of adequate notice and a meaningful opportunity to def end himself "; and (3) his detention violated the Fifth

Amendment to the Constitution because the INS faile d to produce a witness. We agree with the government tha t in this light, Kiareldeen's allegations that he did no t"challenge the facial constitutionality of any statute" are so mewhat specious. Appellee's Brief at 26.

Section 1229a(b)(4)(B) specifically denies an alien the opportunity "to examine such national security info rmation 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 nec essarily a part of [the] deportation procedure." Carlson v. La ndon, 342 U.S. 524, 538 (1952). Because Kiareldeen's brief ch allenges the general use of classified information, his asse rtions necessarily challenge the constitutionality of the federal statute. We conclude that the Justice Department is dutybound to defend what Congress has enacted, and was

11therefore substantially justified in defending the

constitutionality of this statute.

IV.

We turn now to the government's argument that becau se the "position of the United States was substantiall y 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, defe nse of a congressional statute "will usually be substantia lly 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) (exp laining that Congress has a duty to self-police its measure s for compatibility with the Constitution, and thus situa tions in which its defense of a statute is not substantially justified should be exceptional).

This general rule is a product of two constitutiona l norms: (1) the Executive Branch has an obligation t o"take Care that the Laws be faithfully executed," U.S. Co nst., 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 implausi ble that Congress intended to penalize the government for de fending 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 govern s the procedure used by the INS in removal proceedings. I t declares that an alien's statutory right to examine the evidence against him in a removal proceeding does n ot entitle him "to examine such national security info rmation 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

12codified two previous cases which upheld the use of

classified evidence to both oppose admissions and d eny 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 ev idence used to exclude an alien); United States ex rel. Kn auff v. Shaughnessy, 338 U.S. 537 (1950) (upholding a regul ation providing for summary exclusion without a hearing f or an alien deemed to be a security risk).

Kiareldeen responds to the government's argument by challenging the constitutionality of the use of cla ssified evidence generally. He emphasizes that "[n]o court that has subjected the INS's use of secret evidence to the m odern due process analysis set forth in Mathews v. Eldrid ge, 424 U.S. 319 (1976), has found its constitutionality ev en to be a close question." Appellee's Brief at 15. He relie s 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 AntiDiscrimination 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 propri ety vel non

of the district court's treatment of this constitut ional argument is not before us, nor is it relevant to th e 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 whethe r 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 unclassifi ed summaries of the classified evidence. The summary

___________________________________________________ ______________

1. Since vacated by the Court in Reno v. American-A rab AntiDiscrimination Committee, 524 U.S. 471 (1999).

13provided on July 29, 1998 stated that it was compri sed of

information obtained by the FBI's Joint Terrorism T ask Force. It explained that this information concernin g terrorist investigations is "classified to protect against disclosure that would permit a terrorist or suspect ed terrorist organization, group, or individual to avo id preventive or detection measures, or would reveal F BI or other intelligence agency sources and methods by wh ich such information is obtained." App. Vol. II at 26.2 Indeed, with each subsequent summary the government provide d Kiareldeen, it appears to have been making a concer ted

___________________________________________________ ______________

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

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

The Joint Terrorism Task Force (JTTF) is an FBI sup ervised squad with detailed representation from numerous law enforceme nt agencies that work jointly on terrorism matters in the Newark, Ne w 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 Intelli gence Collection and Foreign Counterintelligence Investigations, dated J une 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 t hese guidelines is foreign intelligence information and is classified national security information as defined by Executive Order 12958. Ce rtain information which would otherwise be unclassified when standing alone, such as the fact that an organization has been designated by th e United States Secretary of State as a terrorist organization, may require classification

when combined with or associated with other unclass ified or classified information. Additionally, when presented in a cont ext that would reveal the FBI's investigative interest in certain individ uals, organizations, or countries, information which would normally be uncl assified may be properly classified.

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

14effort to divulge as much information as possible t o assist

___________________________________________________ ______________

"National security" as defined in Executive Order 1 2958, section 1.1(a), refers to the national defense or foreign relations of the United States. Investigation of international terrorism is necessa ry to the national security. Counter terrorism investigations are prim arily intended to prevent harm to U.S. persons and U.S. interests, bu t also are designed to prevent harm generally. In conducting counter te rrorism investigations, the FBI seeks information dealing w ith, but not limited

to: (1) individuals, groups, or organizations who are o r may be engaged in terrorist activities; (2) recruitment of targets by individuals or organizations who are or may be engaged in terroris t activities; (3) the organizational structure of terrorist and suspected terrorist organizations or groups of individuals; (4) methods of procuremen t and training employed by terrorist and suspected terrorist organ izations or groups and individuals; (5) operational and financial plan s and techniques of terrorist and suspected terrorist organizations or groups and individuals, including fund-raising; (6) methods of communicatio n by terrorist and suspected terrorist organizations or groups and ind ividuals; and (7) information needed to protect the safety of any per sons or organizations, including those who are targets, victims or hostage s of international terrorist organizations. Collection of this and sim ilar information is essential to the FBI's ability to identify and coun teract threats to the national security. Non-public information collected pursuant to international terrorism investigations is classifie d to protect against disclosure that would permit a terrorist or suspect ed terrorist organization, group, or individual to avoid prevent ive 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 infor mation that Hany Kiareldeen is a suspected member of a terrorist org anization. Information has disclosed Kiareldeen maintains relationships wi th other members and/or suspected members of terrorist organizations dedicated to committing acts of violence against the people of t he United States or its

allies.

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

15him 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 mount ing a defense to the allegations. However, the same infor mation proved insufficient to both the immigration judge a nd the district court. Although accepting the JTTF summari es as "expert evidence," the immigration judge determined that the INS's lack of testimony, both public and in cam era, was insufficient to counter Kiareldeen's evidence. App. Vol. II at 43. The district court, however, attacked the credi bility 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 reveal ing its undercover sources, is both understandable and comforting. That a court would then choose to criti cize the FBI for being unwilling to risk undermining its cov ert operations against terrorists is somewhat unnerving

.

The district court also criticized the government f or its apparent unwillingness to also bring criminal charg es against Kiareldeen.3 It stated that "even the gover nment

___________________________________________________ ______________

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 b ombing the WTC and stated that a suicide bombing was not appropria te.

Recently, a source advised [sic] Kiareldeen express ed a desire to murder Attorney general Janet Reno for her role in the conviction of those responsible for the bombing of the World Trad e Center. The information developed indicates that Kiareldeen pos es 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 a ssist in the murder of the Attorney General. The FBI took additional st eps to test the veracity of the source reporting the threat against the Atto rney general.

App.Vol. II at 25-27.

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

16does not find its own allegations sufficiently seri ous to

commence criminal proceedings." Id.

This statement illustrates both a simplistic and en tirely uninformed view of the processes by which the Justi ce Department investigates and deals with suspected te rrorists within our borders. It completely disregards the of ten complex determinations involved in releasing confid ential counter-terrorism intelligence into the public aren a through its introduction into both administrative hearings and court proceedings. Such a criticism implies that the gove rnment may only utilize information against an individual in a civil context, such as in deportation procedures, if it a lso

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

This is a distinction with a difference.

"For reasons long recognized as valid, the r esponsibility for regulating the relationship between the Unit ed States and our alien visitors has been committed to the political branches of the

Federal Government." Mathews v. Diaz, 426 U.S. 67, 8 1 (1976). " `[O]ver no conceivable subject is the legislative power of Congress more complete.' " Fiallo v. Bell, 430 U.S. 787, 7 92 (1977) (quoting

Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). Thus, "in the exercise of its broad power over imm igration and naturalization, `Congress regularly makes ru les that would be unacceptable if applied to citizens.' " 430 U.S., at 792 (quoting Mathews v. Diaz, supra, at 79-80). Responden ts do not dispute that Congress has the authority to detain aliens suspected of entering the country illegally pending their deportat ion hearings, see

Carlson v. Landon, 342 U.S. 524, 538 (1952); Wong Wi ng v. United States, 163 U.S., at 235. And in enacting the precur sor to 8 U.S.C. S1252(a), Congress eliminated any presumptio n of release pending deportation, committing that determination t o the discretion of the Attorney General. See Carlson v. Landon, sup ra, at 538-540. Of course, the INS regulation must still meet t he (unexacting)

standard of rationally advancing some legitimate gove rnmental purpose . . ."

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

17intends to commence criminal proceedings against th at

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, esp ecially when dealing with potential terrorists, it is impro per to evaluate its position by using traditional standard s 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 degr ee of confidence our society thinks he should have in the correctness of the factual conclusions for a partic ular type of adjudication.' " Addington v. Texas, 441 U.S. 41 8, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1 970)).

Thus, at one end of the spectrum is the familiar bu rden of proof in most civil proceedings: preponderance o f the evidence. At the other end is the standard of proof designed to exclude, as nearly as possible, the likelihood o f an erroneous judgment in a criminal case: proof beyond a reasonable doubt. The intermediate standard, genera lly utilized in fraud or quasi-criminal matters, requir es 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, a nd convincing evidence that the facts alleged as groun ds of deportation are true"). See also Ribeiro v. INS, 53 1 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) wha t highly probably has happened, or (c) what almost certainly has happened."4

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

18We 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 dist rict court proceeding, or upon an inquiry into whether the government met its stated burden of proof. Substant ial justification is measured on the basis of whether t he government was justified in initiating the proceedi ng and going forward with the hearing before the immigrati on judge. To be substantially justified, the governmen t's position need not be "correct", or even "justified to a high degree." Pierce v. Underwood, 487 U.S. 552, 565, 56 6 n.2 (1988). Rather, the government must simply have a "reasonable basis in both law and fact" or be"justi fied in substance or in the main -- that is, justified to a degree that could satisfy a reasonable person." Id. (inte rnal quotation marks omitted).5 Whether the government w as substantially justified, therefore, does not presen t 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 justi fied in believing it to have been." Id. at 561.

A court must not "assume that the government's posi tion was not substantially justified simply because the government lost on the merits." Morgan v. Perry, 14 2 F.3d 670, 685 (3d Cir. 1998) (citation omitted); accord Pierce, 487 U.S. at 569 (reminding that the government "cou ld take a position that is substantially justified, ye t 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 t o establish that its decision to litigate was based o n a

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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 reasona ble connection between the facts alleged and the legal theory adva nced." See, e.g., Morgan v. Perry, 142 F.3d 670, 684 (3d Cir. 1998).

19substantial 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 construe d strictly in favor of the United States").

To hold otherwise would force lower level superviso rs in anti-terrorist investigations to utilize a cost/ben efit analysis in deciding which cases to pursue. Rather than simp ly pursuing individuals and groups against which the government had the strongest case, they might be re luctant to pursue any case in which a sizeable fiscal loss could

result. This would act as a disincentive to faithfu lly execute all the laws, and could result in the government pu rsuing only those individuals and groups against whom it appeared to have an almost guaranteed chance of suc cess. 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 a lso lose substantial taxpayer funds as well. Finally, the fl oodgates of EAJA cases would be opened, subjecting the governme nt to a case similar to this one every time it was unsucc essful. 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 govern ment furnished to Kiareldeen, we are satisfied that ther e was ample substantial justification for the position ad opted by the government in the habeas corpus proceeding. Thi s is especially true considering the FBI's statement tha t: "Investigation of international terrorism is necess ary 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 ha rm generally." App. Vol. II at 25-26.

Certainly, in investigating suspected terrorists in immigration matters, the government should not be h eld to a higher standard than required by Rule Three and R ule

Four of the Federal Rules of Criminal Procedure. Th ese 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 th at [such]

20an offense has been committed and that the defendan t has

committed it." Fed. R. Crim. P. 3, 4. Additionally, the

Fourth Amendment states that ". . . no Warrants sha ll issue, but upon probable cause, supported by Oath o r 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 amendm ent
to the INA. Section 240 of the INA states that an a lien is not entitled "to examine such national security inf ormation 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 signi ng. 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 an d around the world, to enhance law enforcement investigatory tools, and other purposes."6

D.

We are not inclined to impede investigators in thei r efforts to cast out, root and branch, all vestiges of terrorism

both in our homeland and in far off lands. As the C ourt has

stated:

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6. It bears note that H.R. 1266, entitled the"Secre t Evidence Repeal Act of 2001," was introduced on March 28, 2001, by Repr esentative David Bonier (D-MI) and was later referred to the Subcomm ittee on Immigration and Claims of the House Judiciary Commi ttee. This Act, whose objective is to limit the government's use of classified evidence in cases such as Kiareldeen's, nevertheless would stil l permit such evidence to be used, inter alia, for "terroristic activity d eportation." See 8

U.S.C. S1229a(b)(4)(B). See H.R. 1266, 107th Cong. (2001).

21Few 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 suppress ed in many countries. Unless a society has the cap ability and will to defend itself from the aggressio ns 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, unders tandably felt shackled by the government's unwillingness to provide

Kiareldeen the names and addresses of its counterterrorism personnel, both in uniform and in civilia n clothes. Nonetheless, the public fisc should not lightly be exposed to financial penalties when the war on terrorism is tr ansferred from the domestic battlefield that our country has become,

to the vacuum-sealed environment of a federal court room, with such civilized accouterments as burdens of pro of and

axioms of evidence.

We conclude also that the government clearly met th e test of being "substantially justified" by drawing an analogy to the concept of probable cause. Inside the courtr oom, 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 thi s should

never deter its assiduous search to weed out from o ur midst those who would destroy us. The Court has

instructed that

probable cause requires only a probability o r substantial chance of criminal activity, not an actual showing of such activity. . . In making a de termination of probable cause the relevant inquiry is no t whether particular conduct is "innocent" or "guilty, " but the degree of suspicion that attaches to particu lar types of

noncriminal acts.

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

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

22pummeling that the FBI received following the Septe mber

11th tragedy for not possessing sufficient intellig ence materials, consider the following information revea led 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 wi th 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 (A yyad is a convicted co-conspirator in the WTC bombing) . Ayyad did most of the talking about bombing the WT C as the others listened. Ayyad stated that he sugges ted to Sheikh Omsar Abdel Rahman (Rahman) that a su icide bombing should be attempted on the WTC. Acco rding to Ayyad, Rahman had another idea about bomb ing the WTC and stated that a suicide bombing was no t appropriate.

App. Vol. II at 26.

On July 29, 1998, the Joint Terrorism Task Force ha d information that Ayyad, the convicted terrorist in the 1993 bombing of the World Trade Center, suggested a suic ide bombing of the Center. This understandably created apprehension on the part of the Joint Terrorism Tas k Force, alerting the government to take all necessar y action to investigate all leads and assure the defense of our nation. On September 11, 2001, slightly over two ye ars after the government supplied this information to b oth the INS and the district court in this case, the convic ted terrorist's suggestion became a reality. It is impo ssible to conjure up a "particular type[ ]" of activity, as m entioned in Gates, that would be more nefarious than that which happened on Black Tuesday. See Gates, 462 U.S. at 2 43 n.13. Such activity surely constitutes a quantum of suspicion justifying probable cause, as well as sub stantial 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

23special circumstances make an award unjust," 28 U.S .C.

S 2412(d)(1)(A), and therefore the district court e rred in requiring it to pay Kiareldeen attorneys' fees.

* * * *

We have considered all contentions raised by the pa rties

and conclude that no further discussion is necessar y.

The judgment of the district court awarding attorne ys'

fees will be reversed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

24