UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
JOHN ASHCROFT, Attorney General
of the United States of America
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
D.C. Civil No. 02-cv-06115
District Judge: The Honorable William J. Martini
Argued: July 15, 2004
Before: SLOVITER, BARRY, and WEIS, Circuit Judges
(Opinion Filed: August 9, 2004)
Joshua Bardavid, Esq. (Argued)
401 Broadway, Suite 701
New York, NY 10012
Attorney for Appellant
Yanet P. Noble, Esq. (Argued)
Thomas R. Calcagni, Esq.
Office of the United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Attorneys for Appellee
BARRY, Circuit Judge
By his own account, Salim Yassir was born in Gaza City in Palestine on January 1, 1976. At the age of ten, Yassir–accompanied by his uncle–relocated to a refugee camp in Libya. After his father and sister died in Gaza in the late 1980s, Yassir was joined in Libya by his mother in 1990. Yassir remained in Libya until 1999, when, with the help of his uncle, he made his way to Syria via Egypt. In Syria, he obtained a false passport which enabled him to travel to England. From England, Yassir stowed away on a ship bound for the United States, seeking, in his own words, “the land of opportunity” and “democracy and justice and freedom.”
On August 29, 2000, the ship on which Yassir was stowed arrived at Port Elizabeth, New Jersey. On attempting to enter the United States, Yassir was detained and has remained detained at the Elizabeth, New Jersey Detention Center ever since. He sought asylum, but asylum was denied and an order of removal subsequently issued. However, neither the government nor Yassir has been able to locate a country willing to accept him and issue travel documents for him. He is, quite literally, a man without a country.
The government has repeatedly and consistently taken the position over the almost four years that Yassir has been detained that his continued detention is necessary solely because of uncertainties about his identity.2 No other reason has been proffered. Thus, after a custody review on February 26, 2002, the government stated that it was necessary that Yassir’s detention continue because no travel documents had been obtained for him from the Palestinian Liberation Organization (PLO). A17. On August 5, 2002, in an interview conducted as a follow-up to the February 26 custody review, the government noted that the PLO had not yet confirmed Yassir’s identity. A22-25. On January 31, 2003, after its second custody review, further detention was ordered, the government concluding that Yassir posed a flight risk because his identity and citizenship remained unverified. A15. On February 24, 2004, the government conducted a third custody review and determined as follows: “At this time, ICE cannot be sure of whom [sic] you are. As such, you are deemed a flight risk and . . . ICE will continue your detention.” A13.
Yassir contested the validity of his continued detention by filing a petition for a writ of habeas corpus in the U.S. District Court for the District of New Jersey. Among other arguments, he argued to the District Court–as he does to this Court–that his indefinite detention violates the Due Process Clause of the Constitution.3 The government, in turn, argued–and argues to us–that it is not a violation of the Constitution to indefinitely detain a non-criminal, inadmissible alien whose identity cannot be verified. The District Court denied Yassir’s petition, concluding that “[u]ntil and unless petitioner’s identity is confirmed, it is reasonable for the INS to continue his detention[.]” A10.
At oral argument before us, the government conceded that Yassir’s identity is no longer in doubt. This concession was based on a letter dated February 13, 2004–approximately three months after the District Court considered this matter–from the PLO Mission in Washington, DC which confirmed that “Mr. Yassir who was born in Gaza in 1976, was ten years old when he left Gaza[,]” and thereby corroborated what Yassir has been telling the Government since he first arrived here nearly four years ago.4 A27. The government does not dispute the authenticity, veracity or effect of this document.5 It is clear, then, that the sole stated basis for Yassir’s continued detention no longer exists.
This matter, however, is not resolved simply by confirming Yassir’s identity. In order to deport Yassir, the United States must find a country willing to issue travel documents for him. As the PLO explains in its February 13, 2004 letter, under the Oslo Accord between the Palestinians and Israelis, no travel documents can be issued for any person who does not have official Israeli or Palestinian identification. A27. Because Yassir left Gaza at age ten–an age at which it seems highly unlikely that he could have had official Israeli or Palestinian documents–under the Oslo Accord neither the PLO nor Israel can now issue travel documents for him.6
With the PLO and Israel ruled out as potential authorities that might accept Yassir, at least as of the date of the District Court’s opinion, Libya seems the next likely option. From the age of ten until he was twenty-four, Yassir lived in Libya, albeit not as a citizen, but as a refugee. Attempts to obtain travel documents for Yassir from Libya, however, have also been rebuffed. In response to one inquiry, Libya apparently stated that “they would not and will not accept the deportation of Yassir[.]” A122. This was predictable given that, in 1995, Libya, at least officially, expelled all Palestinian refugees.7 Numerous attempts by the government and by Yassir to obtain travel documents from Morocco and other countries have also failed. Yassir has also, to no avail, asked the United Nations to assist in obtaining travel documents.
Yassir does not contest the government’s right to deport him. Rather, he seeks to be released under supervision while the search for a country willing to issue travel documents continues. If and when travel documents are obtained, Yassir asserts that he will voluntarily depart. The government, however, is concerned that Yassir, if not kept in detention, might not surrender himself to authorities voluntarily. We note, however, that, until now, the government has maintained that Yassir posed too great a flight risk to release from detention only because his identity was in doubt, which it no longer is.
Moreover, the fact that Yassir has been detained for nearly four years has garnered the attention of various individuals and institutions, at least one of which will serve as his sponsor, should he be released–Christ House, a residence in the Bronx for victims of torture and for those seeking political asylum.8 Thus, Yassir comes before us with his identity established, a number of contacts in the community, and a proposed residence and address in the area. And, as discussed above, it surely does not appear reasonably foreseeable that removal is likely, at least any time soon. None of these facts was available for consideration by the District Court.
Yassir’s circumstances, then, have changed dramatically since he was first detained and since the District Court had before it his habeas petition. It is not, however, for us as a reviewing court to consider in the first instance these changed circumstances and grant the relief he seeks. Rather, it is for the District Court to weigh the various factors that favor releasing Yassir under supervision against any arguments the government may now make that would, in its view, justify his continued detention.
This matter will be remanded to the District Court for a determination as to whether Yassir should be released under supervision while both he and the government continue to seek a country that will accept him. This remand will be without prejudice to Yassir’s right to appeal if the District Court were to determine that release is inappropriate.9