UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Filed May 14, 2002 MAZEN AL NAJJAR, Petitioner, vs.

JOHN ASHCROFT, Attorney General, United States Department of Justice; JAMES ZIGLAR, Commissioner, Immigration and Naturalization Service; ROBERT WALLIS, District Director, Miami District of the INS; and DONALD McKELVY, Warden, Federal Correctional Complex Coleman, Coleman, Florida, Respondents. ______________________________________/ Petition for Habeas Corpus and Complaint for Injunctive and Declaratory Relief Introduction 1. This action challenges the current detention of Dr. Mazen Al Najjar. Dr. Al Najjar has been subject to a final and executable order of deportation since November 13, 2001, and has been detained ? in solitary confinement ? since November 24, 2001. The immigration statute that governs his detention authorizes the INS to detain aliens for a maximum period of six months after the final order of deportation becomes executable; thereafter they must be released, although the INS may impose supervisory conditions on their release. In Al Najjar's case, the six-month period ended on May 13, 2002, yet the INS has not released Al Najjar. 2. In addition, the country to which Al Najjar has been ordered deported, the United Arab Emirates, has now stated that it will not admit Al Najjar. Accordingly, there is no significant likelihood that he will be deported in the reasonably foreseeable future. Moreover, Al Najjar has been found after an exhaustive immigration proceeding to pose neither a danger to the national security nor a flight risk warranting detention without bond. In light of these facts, any further detention serves no legitimate immigration purpose, and violates due process. Accordingly, Al Najjar requests that this Court order his immediate release on the grounds that his continued detention violates the INA and the Due Process Clause of the Fifth Amendment. Jurisdiction 3. This action arises under the United States Constitution and the INA, 8 U.S.C. ??1001 et seq. This court has habeas corpus jurisdiction pursuant to 28 U.S.C. ??2241, et seq., and Article I, ?9, Clause 2, of the Constitution, and federal question jurisdiction pursuant to 28 U.S.C. ?1331. Declaratory relief is authorized by the Declaratory Judgment Act, 28 U.S.C. ??2201, 2202. Petitioner is in custody under color of the authority of the United States, in violation of the Constitution and laws of the United States. Venue 4. Venue lies in the Southern District of Florida because the Petitioner is being detained under the authority and jurisdiction of the INS District Director, who is located in Miami, Florida. Petitioner is currently detained in the Federal Correctional Complex in Coleman, Florida. Parties 5. Petitioner/Plaintiff Dr. Mazen Al Najjar is a stateless Palestinian who first entered the United States in 1981 and last entered the United States in 1984. Prior to his detention by the INS in November 2001, Al Najjar resided in Tampa, Florida with his wife and three U.S. citizen daughters, and was an adjunct professor at the University of South Florida.. 6. Defendant/Respondent John Ashcroft is sued in his official capacity as the Attorney General of the United States. In this capacity he has responsibility for the administration and enforcement of the

immigration laws pursuant to 8 U.S.C. ?1103, routinely does and transacts business in the Southern District of Florida, and is Al Najjar's legal custodian. 7. Defendant/Respondent James Ziglar is sued in his official capacity as the Commissioner of the INS. In this capacity he has responsibility of administering and enforcing the immigration laws pursuant to 8 U.S.C. ?1103, routinely transacts business in the Southern District of Florida, and is Al Najjar's legal custodian. 8. Defendant/Respondent Robert Wallis is the District Director of the Miami District of the INS and is sued in his official capacity. In this capacity he is responsible for the administration and enforcement of the immigration laws in Florida, and is Al Najjar's legal custodian. 9. Defendant/Respondent Donald A. McKelvy is the Warden of the Federal Correctional Complex in Coleman, Florida, where Al Najjar is now being detained. He is sued in his official capacity only and is Al Najjar's legal custodian. Facts Prior Proceedings 10. Dr. Al Najjar's case has been before this Court on two prior occasions, but this action presents questions distinct from, although related to, those at issue in the prior proceedings. His first habeas petition challenged the legality of his detention while his immigration proceedings were pending. He was detained for three and one-half years on the basis of secret evidence that neither he nor his lawyers were permitted to see. In Al Najjar v. Reno , 97 F.Supp.2d 1329 (S.D. Fla. 2000), vacated as moot on other grounds, Al Najjar v. Ashcroft, 273 F.3d 1330 (11th Cir. 2001), this Court held that Al Najjar's detention violated his constitutional rights and the INA, and remanded for a rehearing on his custody status at which he was to be afforded a meaningful opportunity to respond to the government's charges. The rehearing ultimately led to Al Najjar's release from custody on December 15, 2000, after an immigration judge held a two-week hearing and ruled that Al Najjar did not pose a threat to national security, and both the BIA and the Attorney General herself declined to stay his release on bond. Al Najjar was free on bond from December 15, 2000 to November 23, 2001. The INS has not alleged that Al Najjar engaged in any activity during the year that he was free on bond that threatened the national security or the community, or that indicated that he was a risk of flight. 11. Al Najjar's second habeas petition challenged his re-arrest and detention on November 24, 2001. That second detention followed the completion of the Eleventh Circuit's judicial review of Al Najjar's deportation order. Al Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001). On November 13, 2001, the Eleventh Circuit issued the mandate in the deportation order case, which had the effect of lifting a stay on the execution of Al Najjar's deportation order and constituted final judicial review of the order of deportation. At the time of his re-arrest, the Department of Justice explained that it detained Al Najjar pursuant to an INS policy of detaining "individuals who have a final order of deportation while it prepares for their removal from the United States if they are a flight risk, a threat to the community or a threat to national security." The Department, however, cited no new evidence, but merely repeated the very allegations that had been found unsupported by any evidence in the INS's own administrative process one year earlier. 12. On February 19, 2002, this Court dismissed Al Najjar's second habeas petition. It determined that 8 U.S.C. ?1252(c) (1995) was the applicable statute governing Al Najjar's detention, but interpreted that statute to afford the Attorney General six months from the time the order of deportation becomes executable to detain Al Najjar pending his removal. Al Najjar v. Ashcroft, 186 F.Supp.2d 1235, 1240 (S.D. Fla. 2002). The Court expressly noted that the six month period would expire on May 14, 2002. Id. at 1242.

Material Facts for this Habeas Petition 13. On November 13, 2001, when the Eleventh Circuit issued the mandate in connection with Al Najjar's petition for judicial review of his deportation order, the deportation order became final and executable. 14. On November 24, 2001, the government re-arrested Al Najjar and placed him in solitary confinement in a maximum security federal prison at Coleman, Florida. Until very recently, he was

denied all contact with others in the prison, denied any contact visits with his family, subjected to routine strip searches, and confined to his cell for 23 hours a day. These conditions are far worse than those imposed on many convicted murderers, yet Al Najjar has not even been accused of committing a crime. 15. The respondents' authority to detain Al Najjar is governed by 8 U.S.C. ?1252(c) (1995). Al Najjar v. Ashcroft, 186 F.Supp.2d at 1240. 16. That statute authorizes detention of aliens subject to final deportation orders for a maximum of six months pending the government's attempt to effectuate departure from the United States. 8 U.S.C. ?1252(c) (1995). Thereafter, they must be released, although the INS may impose supervisory conditions on their release. 8 U.S.C. ?1252(d) (1995). 17. The six month period in this case began to run with the November 13, 2001, issuance of the Eleventh Circuit mandate in Al Najjar v. Ashcroft, 257 F.3d 1262. As of May 14, 2002, Al Najjar has been detained by respondents beyond the statutorily authorized maximum. 18. Al Najjar has cooperated fully in seeking to effectuate his removal from the United States. Through counsel, he has provided all relevant documents, consulted with the INS regularly, and done everything within his power to facilitate his removal. 19. For example, on November 28, 2001, Al Najjar's counsel contacted INS officials to facilitate removal and turned over travel documents with a letter to the Egyptian government requesting renewal of Al Najjar's travel documents. Al Najjar's counsel further communicated with INS officials by letters dated December 4, 2001; December 28, 2001; January 4, 2002; January 11, 2002; January 15, 2002; January 25, 2002; February 1, 2002; February 8, 2002; February 25, 2002; March 12, 2002; March 25, 2002; April 30, 2002; and May 2, 2002. In weeks where counsel did not send a letter, contact was usually made with INS officials by telephone. 20. In addition to direct contact with INS officials, counsel for Al Najjar wrote letters to help facilitate removal to the U.A.E. on February 4 and February 25, 2002; and to the Kingdom of Saudi Arabia on February 11, 2002; February 26, 2002; and May 2, 2002. Counsel also made several phone calls to the Saudi government seeking assistance in the removal process. 21. Even before his deportation order was final, Al Najjar made efforts to find a country that would accept him. To this end, in 1997-98, friends and family of Al Najjar contacted authorities in several countries in an attempt to find a country to which he could go. After much searching, Guyana initially agreed to admit Al Najjar and his family. However, after Guyana authorities met with U.S. officials in 1998, Guyana rescinded its offer of admission. 22. Al Najjar has been ordered deported to the United Arab Emirates. However, on March 11, 2002, the U.A.E. embassy wrote Al Najjar's counsel to notify him that Al Najjar would not be granted a visa. Mar. 11, 2002 Letter from Saeed R. Al Zaabi to Joseph Hohenstein, Exhibit O to Hohenstein Affidavit, Attachment 1 to Memorandum in Support of Emergency Motion for Release. He is a stateless Palestinian, and has no right to emigrate to the U.A.E. He last lived there almost 20 years ago on a temporary workers' visa. In recent years, the U.A.E. has not granted entry to stateless Palestinians with Egyptian travel documents. Statement of Consulate General of the State of Palestine, Dubai, U.A.E., a true and accurate copy of which is filed as Attachment 3 to the Memorandum in Support of Emergency Motion for Release. Accordingly, there is no significant likelihood that he will be deported in the reasonably foreseeable future. 23. Al Najjar has been found, after an exhaustive, two-week custody hearing, to be neither a flight risk nor a danger to the community or national security warranting detention without bond. Claims for Relief Count I 24. The INA limits the Attorney General's authority to detain an individual who has a final order of deportation to a period of six months after the order becomes final and executable.. 8 U.S.C. ? 1252(c) (1995). Al Najjar has fully cooperated with the removal process, and therefore his continued detention violates the INA, and is ultra vires.. Count II

25. The substantive due process component of the Fifth Amendment to the Constitution bars the INS from detaining beyond six months an alien subject to a final order of deportation where there is no significant likelihood of deportation in the reasonably foreseeable future, and bars any preventive detention absent evidence that an individual is either a risk of flight or danger to the community. The country to which Al Najjar has been ordered deported has stated that it will not admit him, and as a stateless Palestinian Al Najjar has no right to return to any country. In addition, he poses neither a flight risk nor a danger to the community. Accordingly, his detention violates the substantive due process guarantee of the Fifth Amendment to the Constitution. Request for Relief Wherefore, Petitioner requests that this Court: A. Issue a Writ of Habeas Corpus requiring Respondents to discharge Petitioner immediately; B. Issue a judgment declaring Respondents' detention of Petitioner to be in violation of the INA and the Constitution; C. Enjoin Respondents from detaining Petitioner in the future; D. Award Petitioner costs and attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. ?2412; and E. Grant any other and further relief that this Court may deem necessary and proper. Respectfully Submitted, David Cole, Esq. Georgetown University Law Center 600 New Jersey Avenue NW Washington, DC 20001 (202) 662-9078 (202) 662-9408 (fax) Randall C. Marshall, Esq. Florida Bar No. 181765 American Civil Liberties Union Foundation of Florida, Inc. 4500 Biscayne Boulevard, Suite 340 Miami, FL 33137 (305) 576-2337 (305) 576-1106 (fax) Joseph C. Hohenstein, Esq. Nationalities Service Center 1300 Spruce Street Philadelphia, PA 19107 (215) 893-8400 (215) 735-9718 (fax) Nancy Chang, Esq. Center for Constitutional Rights 666 Broadway ? 7th Floor New York, NY 10012 (212) 614-6420 (212) 614-6499 (fax) Ira J. Kurzban, Esq. Florida Bar No. 225517 Kurzban Kurzban Weinger & Tetzell 2650 SW 27 Avenue Miami, FL 33133-3003 (305) 444-0060 (305) 444-3503 (fax)

Martin B. Schwartz, Esq. Florida Bar No. 880371 Law Office of Martin B. Schwartz Premier North Executive Building 3816 West Linebaugh Avenue, Suite 401 Tampa, FL 33624 (813) 269-7421 (813) 269-7562 (fax) Certificate of Conference Re: Service of Process I certify that on this 14th day of May, 2002, I conferred by telephone with Douglas E. Ginsburg, Esq., who agreed to accept service for each of the named defendants. Randall C. Marshall Certificate of Service I certify that a true and accurate copy of the forgoing document has been furnished by overnight delivery, this 14th day of May, 2002, to the following counsel: Robert D. McCallum, Jr., Esq. Michael P. Lindemann, Esq. Douglas E. Ginsburg, Esq. U.S. Department of Justice Office of Immigration Litigation, Civil Division 1331 Pennsylvania Avenue NW Washington, DC 20530 I further certify that a true and accurate copy of the forgoing document has been furnished by hand delivery, this 14th day of May, 2002, to the following counsel: Guy Lewis, Esq. Dexter Lee, Esq. U.S. Attorney's Office 99 NE 4th Street Miami, FL 33132