2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-5-2001

Kiareldeen v. Atty Gen USA

Precedential or Non-Precedential:

Docket 00-1823

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Recommended Citation

"Kiareldeen v. Atty Gen USA" (2001). 2001 Decisions. Paper 281.

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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 dutybound 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 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 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 AntiDiscrimination 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 counterterrorism 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